Clement v. Bank of Rutland

— 301 — The opinion of the court was delivered by Rowell, J. The defendant claims that as the pleadings show that the plaintiff conveyed the premises before this suit was brought, he cannot maintain the action, as he had no interest m the property. But this .does not defeat his right to maintain the action on the covenant of seizin, for that covenant, if broken at all, was broken when made, and became and was a non-assignable chose in action, npon which no one can sue but the plaintiff or his personal representative. If the plaintiff conveyed the land before the covenant of warranty was broken, it may be doubtful whether he can recover on that covenant upon what is disclosed in the declaration; for although the count upon it alleges compensation by the plaintiff to The Herald & Globe Association, it does not allege that the plaintiff conveyed to the association with covenants binding him to make compensation. He may have conveyed to it by quitclaim deed for aught that appears, in which case he would not be bound to make compensation, and query whether then compensation would avail him. In respect of the passage of covenants as incident to the' assignment of estates, the rule is, that when the assignment iémade before breach, and contains no warranty nor other covenant-on which the assignor can be made liable, the right of action on' covenants made by a prior grantor vests exclusively in theassignee, and cannot be enforced by the assignor, even for the benefit of the assignee; because in such case the assignor can sustain no damage, and a man cannot maintain an action for the recovery of damages that he could not have suffered. Keith v. Day, 15 Vt. 660; Bickford v. Page, 2 Mass. 455; 1 Smith’s Lead. Cas. (7th Am. Ed.) 203. But if- the assignor is liable to the assignee, and discharges that liability before suit brought, then he can enforce the covenant, for he thereby, as it were, takes up the covenant for his own - benefit. Williams v. Wetherbee, 1 Aik. 233; Smith v. Perry, 26 Vt. 279; Withby v. Mumford, 5 Cow. 137; 1 Smith’s Lead. Cas. (7th Am. Ed.) 203. — 302 — But if the covenant of warranty was broken by an eviction of the plaintiff himself before he conveyed, as seems to be in. effect alleged in the count on that covenant, then of course he may maintain an action upon it. This brings us to the main question in the case, which is one of construction. It is unnecessary to make an extended statement of the rules that obtain in the construction of deeds. They are numerous, well understood, and of greater or less universality of application. Perhaps as important a rule as any,is, that the intention of the grantor, if not unlawful, is to be given effect when it can be ascertained. And again; deeds are to be construed as a whole in the light of the circumstances that attended their execution, and with a view to give every part meaning and effect, which will always be done if possible. The deed in question, which was given on Dec. 30, 1885, and •contains full covenants, first describes the premises conveyed as the grantor’s banking-house and lot situated on the east side of Merchants Row in the village of Rutland, “ bounded on the ■north by the land and lot of Frederick.Chaffee; on the east and south by the land and lot of Michael Quinn; and on the west by Merchants Row.” It then goes on to say, that “ for a more particular description of said lot, reference is- had to the report and plan as to and of said lot, made to S. W. Rowell, former cashier of said bank, by J. J. R. Randall, dated Nov. 22d, 1878, * * * * which report and plan is hereby given to said Clement; ” and that the grantor “ conveys all the rights, titles, and interests it has in said banking-house and .lot and in the adjoining walls, and no more, and sells and conveys hereby only the real estate in said lot and premises.” It is conceded that the reference made in the deed to said report nnd plan makes that document as much a part of the deed as though it had been actually copied into it as a part of the description. It seems that before and at the time of Randall’s survey and report, there was a controversy between Quinn and the bank as — 303 — to the location of the east-and-west line between their lots ;. and the chief object of that survey was, as shown by, the report, “ to •determine the width of the bank lot.” As the result of his examination and survey, Randall judged, as shown by the report, that Quinn’s north line was two inches south of the south face •of the south wall of the bank building, and said that if Quinn was to pay for the land between the center line of said wall and his north linp, he should pay for eight inches in width. The parties seem to have acquiesced in Randall’s conclusion, for on July 22, 1819, by its deed of that date, the bank duly conveyed that eight inches to Quinn, together with that portion of the bank building thereon standing, which deed was duly recorded on the day of its date ; and the question is, Does the description in the plaintiff’s deed from the bank include all or any part of that eight inches ? If the first description in plaintiff’s deed is to govern, it is obvious that the north liue of Quinn’s lot, wherever located at the time the deed was given, is the north boundary of the land conveyed. Defendant’s counsel claim that that description is to govern ; that it cannot be presumed that the bank intended to convey more than it owned; that the most that can be claimed for Randall’s report is, that it contains a description by courses and distances that is inconsistent with the description by metes •and bounds, and that therefore the description by metes and bounds must govern; that it does not follow that a particular ■description is to be enlarged by a subsequent general description by way of reference to another instrument; that said report does not fix the line with definiteness, but is at best mere conjecture, and shows that the true line of the lots in that section ■cannot be ascertained, as Quinn’s original south line cannot be found, and that said report was referred to in plaintiff’s deed and delivered to him, not for the purpose of more definitely locating the south line of the land conveyed, but for the purpose of giving him all the information the bank had in respect to its location, and that he must have understood that he was to take his deed and the report, and find his land as best he could between the land of Quinn on the south and that of Chaffee on — 304 — the north. While it is true that the intention of the grantor-must govern, yet that intention must be gathered from the language of the deed, and cannot rest in mental purpose alone ; for if the description really covers the strip in question, it must for present purposes be taken that the defendant intended to convey it. If the deed was mistakenly drawn in this respect, it cannot be corrected here. To the argument that the report was referred to and delivered to the plaintiff for the purpose named, it is a sufficient answer to say that the bank did know just where its south line was, for it was definitely fixed by its deed to Quinn as the center line of the south wall of its bank building; but for some reason the-plaintiff’s deed seems to have been drawn without any regard to Quinn’s deed, and as though it never had been given, and with reference to things as they were at the time Randall’s report was-made, else why refer to the report at all, for it had no reference to what the bank then owned, and would not help to fix' the then southern boundary, but it would help to fix its southern boundary as it was before the deed to Quinn, and reference to the report could only serve to deceive the plaintiff in respect to the-true location of that boundary as it then was. The whole tenor and effect of the report is, that the bank lot,, at best, lacked about an inch and a half of being full width, and to fix the south line of the lot to within about that distance of exactness, and at a point two inches south of the south face of the south wall of the bank building; and when the report is considered as written into the description of the deed,, it amounts to nothing less than a representation by the bank that the south line was then as the report showed it to be; and unless that representation is to be nullified by something else in the deed, it must stand, and be effective as matter of description. Rut suppose we treat these descriptions as irreconcilably conflicting, as is claimed we should, then the rule comes in, that less certainty of description yields to greater certainty. This is why courses and distances yield to monuments. But this is not a case of courses, and distances and monuments ; but a case of — 305 — both general and social description of the same boundary by ¿reference to other boundaries and to monuments. The general ■description is by reference to the limits of another’s land, without any particular description or mention of any known or certain object, which is an uncertain description, and was felt to be by the bank, for it went on to make more particular description by reference to said report, whereby it described its southern boundary, not by reference to the limits of Quinn’s land, but by ■reference to the south wall of its bank building, a prominent monument, and located its line two inches south of the south face of it, thereby making certain what before was uncertain, as bar as the deed disclosed, without investigation, and perhaps survey. In Bennedict v. Gaylord, 11 Conn. 332 (s. c. 29 Am. Dec. 299), the first description in the deed was by reference to •known, viable, and well ascertained monuments, the most important of which were natural and permanent, and corresponded with reasonable precision with the courses and distances given ■and ascertained by actual survey, while the second description was by reference to the limits of the lands of others without more, and included twentyone acres more than the first description. The second description was said to be of a very uncertain kind, and the first description prevailed because more certain. But it is said that the deed expressly limits the operation of the conveyance to whatever title and interest the bank had, and declares that nothing more is conveyed, and that the covenants -are thereby limited accordingly. But precise description cannot be limited by such ■ general words of intent. Gilman v. Smith, 12 Vt. 150; Wilder v. Davenport, 58 Vt. 642. Nor will such language restrict the covenants to the grantor’s title •and interest, when the land itself is the subject matter of conveyance. The result is, we hold that that part of the description in the plaintiff’s deed consisting of the report, covers the eight-inch «trip deeded to Quinn, and that that description must prevail over the more general description. *hidgment reversed and cause remanded.