Ballard v. Child , 46 Me. 152 ( 1858 )

The opinion of the Court was delivered by

Tenney, C. J.

Under the agreement of the parties, from the evidence which is competent, the Court are to find the facts, and apply thereto the law.

On Oct. 21, 1842, the defendant’s testator gave to Thomas Sawyer, jr., his heirs and assigns, a deed of a parcel of land, in Augusta, called, in the case, the school house lot. On Oct. 30, 1845, he gave a deed to the plaintiff, of all the interest and right he then had in and to a larger parcel of land, in Augusta, described by metes and bounds, and which embraces, in the boundaries, the premises conveyed to Sawyer, with the covenant warranting against the lawful claims of all persons, claiming by, through, or under him. This deed was recorded earlier than the former, but it is agreed by the parties in this case, that the plaintiff, at the time he took it, had actual knowledge of the deed to Sawyer. The title of the school house lot was, therefore, in the latter, nothing therein having passed to the plaintiff. And, for the breach of the covenant of non-claim, this action is brought.

It cannot be supposed, that the plaintiff understanding^ paid a valuable consideration for the school house lot, on the delivery of the deed to him, inasmuch as he must have known that he acquired no right whatever to that part of the premises described. If, therefore, the description of the land had been unqualified, we are warranted in drawing the inference, from the facts, that this lot was intended to be excepted, but the exception was omitted through mistake. In this respect, the case is precisely similar to that of Leland v. Stone, 10 Mass. 459, and a like result would be proper.

But on another ground, which distinguishes this case from the one cited, the plaintiff must fail to recover even nominal damages.

The deed from G. C. Child to the plaintiff, being only of the “ right and interest” of the grantor in the premises, the land described in the deed to Sawyer was excluded from the description, and the covenant could not apply thereto. This seems to be the settled doctrine of the law. In Allen v. Holton, 20 Pick. 458, Wilde, J., in delivering the opinion of the Court, says, in regard to a deed conveying the grantor’s right, title and interest in the land described, “ the grantor conveys his own title only, and all the subsequent covenants have reference to the grant and are qualified by it. In Sweet v. Brown, 12 Met. 175, which was an action of covenant broken, it was held, that the covenant of warranty must be restricted to the grantor’s title and interest, which was the language used in the description of the premises. Hurd v. Cushing & al., 7 Pick. 169 ; Blanchard v. Brooks, 12 Pick. 47; Adams v. Cuddy, 13 Pick. 460; Brown v. Jackson, 3 Wheaton, 449 ; Coe v. persons unknown, 43 Maine, 432.

Judgment for the defendant.

Rice, Hathaway, Appleton, May, and Davis, J. J., concurred.