Belden v. Seymour

Daggett, J. Two points are presented by this motion, for the consideration of the court. 1. Are the defendants personally liable on these covenants? 2. Are the defendants liable for a breach of these covenants, because the land, by mensuration, fell short of 50 feet on Main street? Both these points are presented, by the charge of the judge. 1. The covenant in the deed, so far as it bears on the first question, is in the following words: “Know ye, that we, Henry Seymour and Mary J. Chenevard, administrators on the estate of John Chenevard, jun., being thereunto lawfully authorized, by the court of probate for the district of Hartford,” &c. “Also, we the said Henry Seymour and Mary J. Chenevard, as administrators as aforesaid, and by virtue of the powers aforesaid, do, for ourselves, and said heirs, executors and administrators. covenant with said Thomas Belden, his'heirs and assigns, that at and until the ensealing of these presents, we have good [24] right to bargain and sell the same in manner and form as is above written ; and that the same is free of all incumbrances yvhatsoever. And furthermore, wc the said Henry Seymour and Mary J. Chenevard, as administrators, do, by these presents, hind said estate to warrant and defend,” &c. By the word “ heirs” &c. is meant the heirs of John Chenevard deceased. The deed was signed by the defendants, by their proper names, without the addition of administrators. Are the defendants personally bound by these covenants? The case of Mitchell v. Hazen, 4 Conn. Rep. 495. must settle this question. That case was decided on deliberation, and by a unanimous opinion of the court, in June 1823. The difference is only;—first, in that case, the defendant covenanted for himself, his heirs, executors and administrators, and also for the heirs of another person. Here, the defendants bind themselves, and the heirs of another person. Secondly, in that case the defendant signed the deed as administrator. Here, the defendants sign without the addition of their character. In both cases, the administrators bound themselves ; in both cases? they attempted to bind others ; in neither ease, could they, on principles of law, bind others. The covenants in neither deed bound, or could bind, any but the grantors. They could have no operation, if not obligatory upon the grantors. This case, then, must be governed by the case of Mitchell v. Hazen. If the case cited needed any support, the strong case of Sumner v. Williams, 8 Mass. Rep. 162. and Duvall v. Craig, 2 Wheat. 45. are full to the purpose. In the first of these cases, the deed was executed by administrators ; they covenanted as administrators, that they were well seised as administrators, and as such, that they would defend, &c. They signed and sealed the deed as administrators. The only difference, then, is against these defendants. In Duvall v. Craig, the supreme court of the United States held, that if a trustee bind himself, he is liable at law for a breach thereof, although he describes himself as covenanting as trustee. The doctrine, then, is, that where a person covenants in a deed as administrator, it is a personal covenant, and he is personally bound. Thus far, the charge is correct. 2. The judge charged the jury, that the defendants conveyed to the plaintiff 50 feet of land on Main street, and covenanted with the plaintiff, that they had good right and title to convey the exact quantity of land mentioned in the deed; and that for [25] any deficiency therein, the defendants were liable. This part of the charge cannot be sustained. The description of the land in the deed is as follows: “All that lot or plat of land, situate &c., described and bounded as follows, viz. beginning at the Southwest corner of Mrs. Merrills’ home-lot, or the heirs of Hezekiah Merrills, deceased; from thence running South, on the line of Main street, 50 feet; bounded South on the heirs of John Che nevará, deceased.” The question is, are the defendants liable for any deficiency of this line, should it, by mensuration, fall short of 50 feet? The rule is, that known and fixed monuments controul courses and distances. So the certainty of metes and bounds will include all the lands within, though the quantity vary from that expressed in, the deed. The least certainty must yield to that which is most certain, if they cannot be reconciled. 4 Kent’s Comm. 455. This general doctrine is established, by the highest courts, in Connecticut, Massachusetts and New-York, and by the supreme court of the United States. Snow v. Chapman, 1 Root, 528. Howe & al. v. Bass, 2 Mass. Rep. 380. Pernam v. Wead, 6 Mass. Rep. 131. Jackson ex dem. Staats & al. v. Carey, 2 Johns. Ca. 350. Jackson ex dem. Butler v. Widger, 7 Cowen 723. Jackson ex dem. Roberts v. Ives, 9 Cowen 661. Preston’s heirs v. Bowmar, 6 Wheat. 580. The judge charged the jury, that if the line fell short of 50 feet, the defendants had violated their covenants, without instructing them where to begin, or where to terminate. It should have been left to the jury to ascertain the point of the South-west corner of Mrs. Merrills' lot, and then to ascertain where John Chenevard’s land commenced on the South; and they should have been directed, that if the plaintiff had obtained, by the deed, all the land lying between those points, be it 50 feet or less, the covenants of the defendants were not broken. In that event, the plaintiff would have holden to those points, and no further; nor did the defendants, according to the doctrine of the cases cited, convey, or attempt to convey more or other land. It is not suggested, that there is any uncertainty in the boundaries of the land on either side of the land in question. It then may have been so, that there is on the South-west corner of Mrs. Merrills’ lot a known monument, and so on the North side or North-west corner of John Chenevard’s lot. And if those corners are thus known, the deed did not convey, nor attempt to convey, more than lies between them. What if the [26] deed had described the line as beginning at a white-oak tree, and terminating at a chesnut tree, and being 50 feet in length? It is ascertained, that between those trees the distance is only 40 feet; the plaintiff can claim no more; or, if it appears that it is 60 feet, the plaintiff will hold the whole. Fixed monuments must controul courses and distances. The case in 6 Mass. Rep. 131. is, except in name, this case. I therefore think, that there ought to be a new trial, to the end that the parties may place the case on more correct ground. It seems by the motion, that it was insisted on the part of the plaintiff, that he had been evicted of a certain part of the land in question, by a suit in which the defendants were vouched in to defend. As the judge took no notice of that point, in his charge, and as the cause appears to have been decided on the construction of the deed, it is unnecesary further to notice this part of the motion. Let there be a new trial. In this opinion Hosmer, Ch. J. fully concurred.