Butler v. Gale

The opinion of the court was delivered by Redfield, Ch. J. This is an action upon the covenant against incumbrances, in a deed of land. The deed described the land as the north half of a certain lot, which lot appeared in evidence to [743] fee in rectangular form, with its sides corresponding nearly with the cardinal points. The defendant, at the time of the conveyance, was in possession of the north part of the lot, but not of half the lot, in quantity, and this was known to the plaintiff, at the time, and before the conveyance. The defendant offered to prove that, fey the agreement of the parties, the conveyance was only to extend to the land in his possession, at the time. The former conveyances of the land, defined it, as less than one-half of the lot, in quantity. There was also a highway across the lot, which had been open and travelled for many years. The declaration alleged the deficiency, in quantity of land, and the existence of the highway, as breaches of the covenant. In regard to the extent of the land conveyed, we think no doubt can be entertained, unless we are to receive oral evidence to determine the intention of the parties. It is perfectly well settled in this state, that a deed of this kind, as applied to a lot in this form, does import one-half of the lot, in quantity, and in rectangular form, bisecting the east and west lines of the lot. This has been held to be the legal import of the terms used. Rich v. Elliott, 10 Vt. 212; Beecher v. Parmele, 9 lb. 352; Clark v. Fuller, (not reported.) The term half is as definite as the whole, and it could scarcely be contended that, if by mistake, the deed had been of the whole lot, parol proof could be received to prove that but half was intended to be conveyed. If a term is equivoeal or technical, parol proof may be resorted to, to define it, as we refer to dictionaries, or books of art or science. There are many terms in engineering, which are not altogether familiar to persons uninstructed, and where they occur in contracts or evidence, unless the parties agree in their import, proof of their true import must be resorted to. But it would not be competent to prove that a week, meant four days, or a rod, in engineering, ten feet, or that a solid yard of masonry consisted of but twenty solid feet. The proof offered, and which was received, was of this character, although not altogether so obviously so, as the illustrations given above. The deeds of former owners of the land, although of record, in the registry of deeds, not being referred to in this deed, can neither restrict or extend the import of the terms used. The question in regard to the highway being a breach of the [744] covenants against all incumbrances, to a mere lawyer, would not •seem to be one of much difficulty. / But if one chose to confound/ the powers of the court of chancery, in restraining the party from claiming damages, for such a mere technical breach, which the parties must have understood, and could not really have intended to indemnify against, with the dry law of the case, and to appeal to the merely popular opinion, as to the extent of such a covenant, he might very readily convince some persons of no great j>erspicuity in their views, and very likely the great majority of men, of the very great absurdity of the law, without, at the same time, really showing very clearly, how a highway, or a railway, or a private right of way, was not, after all, an incumbrance upon the land. In this country, where our tenures are strictly allodial, we are very much accustomed to consider that, if another really possesses any rights in our land, it is so far forth an incumbrance upon our title. Whether it be small or large in amount, whether it be a mortgage or a right to flow a portion or all of the land, for a shorter or longer period during the year, or to draw water from a well or spring, or to water cattle at a brook, or to pass across the land on foot, or with teams, or to draw wood in winter only across the land, or to build and maintain a railway perpetually, or a highway, is certainly of no importance, in determining the mere technical question of incumbrance or no incumbrance. And it can make no difference whether this right is notorious or not. If the question of an incumbrance were to be determined by its notoriety, or what is the same thing, by its being known to the purchaser, it must, to preserve consistency, be extended to all incumbrances. And, in that view, the grantee could not recover upon this covenant, for paying a mortgage which he knew existed at the time of his purchase. But the contrary is perfectly well established. And in regard to these rights of way, if they existed only in a prior grant, and were not known to the grantee at the time of purchase, no one could claim that they did not constitute a breach of the covenant against incumbrances. And if the question whether a highway is an incumbrance upon land, is to be determined by the fact of its being open and notorious, it resolves itself into this, whether it was the intention of the parties to treat it as an incumbrance, or •not. And the same rule should equally apply to a mortgage which [745] the purchaser agreed to pay. But, no lawyer will contend that, in such a case, if the grantor covenants against all incumbrances, he is not liable to refund the money paid upon the mortgage by the grantee. That is, he is so liable at law. This is the written contract of the parties, and it cannot be set right in a court of law, where the writing is the exclusive evidence of the contract. But in such a case, the party must resort to a court of equity, to restrain the other party from claiming indemnity against an incumbrance, which was intended to be excepted from the covenant. And the same is no doubt true of a covenant against incumbrances, so far as highways are concerned. Ordinarily a court of equity would readily suppose the incumbrance of an existing highway, or railway, or any other known and notorious right, of a similar character, as a right to draw water from a spring, exercised by another at the time of the conveyance, could not have been intended to be indemnified against, and therefore should have been excepted from the operation of the covenant, and would, no doubt, so require the parties to treat the deed. But a court of law could not do this, without confounding all distinctions between the equity and law jurisdiction upon the subject. The case of Patterson v. Arthurs, 9 Watts, 152, relied upon in argument by defendant’s counsel, seems to us to have been decided upon this ground, there being no chancery jurisdiction in that state to any extent. It is the common practice there, or was a few years since, to reform a deed in the course of a jury trial, in an action of ejectment, as the reports abundantly show. That is the only ground upon which this case can be maintained, unless we are prepared to determine questions of law according to the popular opinion, and the probable understanding of the parties, at the time of making contracts, which sounds sufficiently absurd to alarm even the most desperate reformers. The case of Whitbeck v. Cook, 15 John. 483, is not an action upon any covenant against incumbrances, but upon those of seizin and good right to convey, and the court held a highway no breach of the covenants sued upon. The argument of the judge is more plausible than sound, when he attempts to show that a highway is no incumbrance upon the land. J It might, indeed, be a benefit to the land, and so might, in some sections of country, the right (and the exercise of it) to cut the wood and tim746 | her growing upon the land. But it could scarcely be claimed that (such a right is no incumbrance. Í If a highway is no incumbrance, neither would it be if the whole land were covered by a highway, or a public common. )The case of Kellogg v. Ingersoll, 2 Mass. 97, is directly in point, and sustained by the opinion of Chief Justice Parsons, who never stumbled in the law, and is adopted in Connecticut, New Hampshire and Maine, as the cases read at the bar show, and we feel compelled to say that the question admits of no doubt, that a public highway across land is an incumbrance upon the title, the amount of which may be more or less, according to circumstances. Judgment reversed, and case remanded.