Ripley v. Cross

Wells, J.

The instrument upon which this suit is brought would be inoperative as a deed conveying an interest in land; because it is attested by only one witness, the statutes of Vermont, where the land is, requiring two witnesses ; and also because it was executed by an attorney whose power of attorney lacked some of the requisites of those statutes.

As a lease for more than one year, it would also be inoperative to affect the title, or to enable the lessees to hold the land against any other person than the grantor and his heirs. Gen. Sts. of Vt. c. 65, § 7.

But it is not therefore void as a contract between the parties executing it. The personal obligation of the contract between *43 them may be enforced, if there is no other objection to it but that of insufficient compliance with the formalities required by the statute for a deed of land. This doctrine appears to be distinctly recognized as the law of Vermont in the decision relied on by the defendants. Day v. Adams, 42 Vt. 510 .

That it is valid “ against the grantor and his heirs ” is implied by the very terms of the exception in the statute.

It is argued that, as the express words of the statute limit the exception to the “ grantor and his heirs only,” such an instrument cannot be valid against a grantee or lessee; and therefore that the grantee or lessee is not bound by his covenant in an indenture so executed by him. The result of this interpretation would be that the grantor and his heirs would be bound upon the contract, while the grantee or lessee would not.

That the statute of Vermont is not open to a construction so unreasonable, is manifest from its whole purport, which is not to declare the instrument invalid, but only that it shall not be “ good and effectual in law, to hold such lands against any other person but the grantor and his heirs only.” The invalidity is in respect only of its effect upon the title in the land.

If the defendants accepted the instrument as a lease, and occupied under it for a time, having never been evicted, they are liable upon their covenants therein. It is no defence that they were exposed to eviction in case their lessor had conveyed the land, nor that the lease was imperfectly executed, as a deed, by attorney, on the part of the grantor or lessor. Hunt v. Thompson, 2 Allen, 341 . Codman v. Hall, 9 Allen, 335 .

The provision of the statute of Vermont that no deed so executed by defective power of attorney “ shall be of any effect, or admissible in evidence,” must have reference only to the use of such instrument to establish title under it, or to charge the nominal grantor upon it as his deed. The grantee cannot take advantage of the defect to relieve himself from liability resulting from his own execution of an instrument which is not required to have the formalities of a deed in order to be operative and binding between the parties thereto, or against the grantor and his heirs. The case must accordingly Stand for trial.