Blake v. Tucker

The opinion of the court was deiivered'by Redfield, J.

In the trial in the county court, it appeared that Samuel Avery, the original grantee of the land under the state, did not obtain his charter until after he conveyed the land. His conveyance was by deed of quitclaim, with a special covenant of warranty against all title then existing, or subsequently to be derived from the state of Vermont.

The plaintiffs’ counsel now offer to show, that Avery had, in fact, obtained a grant of the land anterior to his conveyance, by attaching to the papers, already in the case, a duly authenticated copy of the grant. That this may not have sometimes been, by this court, allowed to be done, I am not prepared to say. I very well recollect, as the report of the case shows, that it was done in the case of Aldis v. Burdick, 8 Vt. R. 21, but by consent of parties. Where the revision of questions, reserved for the full bench, is considered, as it is in some of the American States, in the nature of an application for a new trial, it is common to allow the parties to supply any defects in their case, by record proof. But, in this state, the revision of questions in this court, upon exceptions taken in the court below, is the same in every respect, except the mere form of bringing up the record, as if the trial were had upon a writ of error. The party may still bring his writ, of error, or, upon filing his bill of exceptions, the *44 c,ase passes up by operation of the statute, if the party, excepting to the decision of the court below, so direct. v/h>ch ever form, then, the trial is had, this court can only pass upon the case, as it was before the county court. ^ there is found error, the party is entitled to a new trial upon the whole case, as a matter of right.

But this court have no doubt that Avery’s title, acquired subsequent to his conveyance, as it was derived from the very source of title against which he covenanted, did enure for the benefit of his grantee and in discharge of his own covenant. The general rule, that, where one conveys land, with general covenant of warranty of title to the grantee, his heirs and assigns, all title subsequently acquired by the grantor will enure for the benefit of the grantee, is well established. Middlebury College v. Cheney, 1 Vt. R. 336. Comstock v. Smith, 13 Pick. R. 116. Lowry v. Williams, 1 Shepley’s R. 282. As if A. lease land to B. for six years, in which he has no interest, and then purchase a lease of the same land for twenty years, and afterwards leases the same land to C. for ten years, the title in B. is good. Com. Dig. Estoppel, E. 10. 1 Stark. Ev. (6 Ed.) 296. The reason, upon which it is said this rule has been established, is that it will prevent circuity of action, and carry into effect the manifest intention of the parties. For it is not to be presumed that any person, who had covenanted against every title, except that conveyed by him, would afterwards purchase in a title for any other purpose, except to fortify the title of his grantee. Ordinarily he could have no other honest intent. And fraudulent and dishonest intentions it is the object of the law, and the duty of courts, to defeat, so far as practicable. And the whole doctrine of the law of estoppel is based upon this principle; to effect justice and prevent wrong. Wherever the arbitrary application of the general doctrine of estoppel would be likely to defeat this very salutary object, the cases show. that it has been considered the duty of courts to prevent the application. So that at the present time, I apprehend, should that application be allowed to bring about manifest injustice, as in many cases it would, if not qualified or restrained by the discre.tion of courts, it would be thought that the doctrine of estoppels was a very dangerous weapon in unskilful hands. So *45 that the skill of the judge, in regard to this subject, consists, not so much in the discovery of the true principle, as in the wisdom of its application to particular cases. The case of Hubbard v. Norton, 10 Conn. R. 422, was decided upon this ground. So the case of Hatch v. Kimball, 2 Shepley’s R. 9. So also Hoto v. How, Ib. 351. So also Harding v. Springer, Ib. 407. In Hosier v. Searle, 2 B. & P. 299, the very reason urged by Lord Eldon, Ch. J. in delivering the opinion of the court, why the estoppel should operate, is, that such was the obvious intention of the parties. If then a party conveying land, with general covenant of warranty, cannot acquire any title, which will not enure to his grantee, a fortiori, where the grantor makes a special covenant against a particular title, shall that title, when procured by the grantor, enure for the benefit of the grantee. If it were not so, then would general words be more binding than the most definite and studied particularity, and the monstrous absurdity result, that a whole is greater than the sum of all its parts, which is impossible.

The question of identity of John Bridgman and John Bridgman, jr., the former being described as of Huntsburgh, and the latter of Hinsdale, is, undoubtedly, a matter of fact, and, when a doubt arises, should be submitted to a jury, as was done in the present case, upon such proof, as the parties may be able to make. I apprehend, however, that the mere fact, that at one time the addition “younger” is affixed to a name, and not at another, raises no reasonable doubt of its designating the same person, especially when the person does not, at both times, reside in the same town. The inference is just as reasonable, that the man’s father resides in one of those towns and not in the other, as that the.names designate different persons. We are then left to the common presumption, whether these names intend the same person, which is in favour of the identity, because the name is the same, in both cases, “ younger” being no part of the name, (Brainard v. Stilphin, 6 Vt. R. 9.) and he is engaged in acquiring title to land at one time, and at another, not very remote, in conveying away the same land.

' The remaining objection to the plaintiffs’ title, is, that he is bound by the recital in Houghton’s deed, of a former deed, executed by him to John W. Blake of the same land. It is *46 i no doubt true, that the grantor in a deed poll, and, to some extent, all who claim title under him, are bound by recitals in the deed. But this is but another branch of the same doctrine of estoppel, and is not to be applied to defeat the manifest intention of the parties. It could hardly be supposed that the parties to this deed intended, by the recital of a former deed to Blake, to preclude the plaintiffs from setting up any title to the land. In that view the conveyance would be a very useless ceremony. The deed of Houghton to Blake was referred to in order to fix the boundaries of the land, and to fix notice of such a deed upon the plaintiffs, and to foreclose any claim he might have upon Houghton on that account. But it must have been expect*-' ed that the plaintiffs would hold all Houghton’s title to the land, which had not been already conveyed to Blake. And it has been held that the mere reference to an instrument will not preclude the party to the d'eed from disputing the existence, even, of the writing referred to. Parker v. Parker, 17 Mass. R. 370 . Note to Am. Ed. 1820 of Yelverton, 226. But, at all events, the plaintiffs, if bound to the fullest extent by the reference to the deed, as a recited, are only bound by the deed to the extent of its obligation, and are not precluded from producing it to the court; although perhaps the recital of the deed would be sufficient for the defendant until the recited deed is produced. 2 Stark. Ev. 314. The deed when produced, being witnessed by only one witness, proved no impediment to the plaintiffs’ title.

Judgment affirmed.