Green v. Collins , 27 N.Y. Sup. Ct. 474 ( 1880 )

Boardman, J. :

Tbe verdict of tbe jury is conclusive upon tbe facts. There was evidence enough to sustain it. Tbe water-closets and sinks were connected with tbe sewer when Collins conveyed to plaintiff. It was an apparent appurtenant to tbe property sold. Tbe plaintiff bad tbe right to believe she was buying tbe use of tbe sewer for a drain to water-closets and sinks. In fact, defendant bad no such right as be bad convoyed, as was shown by tbe Albertson judgment. Tbe defendant bad given a deed to plaintiff with covenant for quiet enjoyment. There was a breach of this covenant when Albertson recovered against plaintiff, and tbe use and enjoyment of tbe sewer was enjoined. Tbe defendant became thereby bable for damages. He has not settled with, or paid, plaintiff for her damages. The amount of her damages was $2,000.

These are tbe facts, as found by tbe jury, on conflicting evidence. These facts must be assumed to be true for tbe purposes of this appeal.

Tbe claim that no easement was conveyed, because defendant bad none, is true. But tbe use made thereof is fallacious. Tbe deed, by its terms, conveys whatever was, in fact, appurtenant to tbe premises. This general right of sewerage was apparently such an appurtenant. Plaintiff bought relying upon appearances. Defendant covenanted she should have and enjoy what she was buying. It was held in Thayer v. Payne (2 Cush., 327) that if the use of the drain was necessary to the beneficial use of the premises granted it passed by the conveyance. If the house and lot were conveyed in terms no one, I think, will dispute the correctness of this decision by Pratt, J., in Tabor v. Bradley (18 N. Y., 114). So, in Huttemeier v. Albro (18 id., 51), “it is a general rule that upon a conveyance of land whatever is in use for it, as an incident or appurtenance, passes with it.” Whether such use is embraced in a deed is a question of construction. But, if it is, the conveyance is as absolute as though specially named and described. Hence an action for a breach of covenant may be maintained for an appurtenant not described, as well as one described, in the deed. If an easement of a right of way were conveyed, though without title in the grantor, no one can doubt he would be liable on his warranty. Any other holding would be destructive of all value in covenants for quiet enjoyment. The covenant operated upon everything which would have passed by the deed had defendant owned. Ruggles, J., says, in Mott v. Palmer (1 N. Y., 569), “a deed passes all the incidents to the land, as well as the land itself, and as well when they are not exju’essed as when they are.” ( Again, at pages 571 and 572, the learned judge shows the fallacy of defendant's claim that Collins could not convey, as an appurtenant to land, a right which he did not- own, so as to become liable on his breach of covenant. (See, also, opinions of Bronson, J., pp. 573-574, and Johnson, J., p. 575.)

The case of Mott v. Palmer arose under a covenant of seizure. The same principles, however, apply in case of a covenant for quiet enjoyment. The only essential difference relates to the time when a breach of the covenant occurs. The covenant of seizure is broken, if at all, instantly, while the covenant for quiet enjoyment is not broken until possession or right to use is disturbed.

Neither of the exceptions to the rejection of evidence offered by the defendant seems to possess any merit. The evidence of depreciation of value in real estate, after plaintiff acquired title, was quite immaterial. Nor was it competent to show defendant’s opinion that he did not consider himself liable.

The amount of damages recovered seems large, but not so large or unreasonable as to show prejudice, passion or mistake.

The charge of the learned judge was clear and fair ; the law was correctly laid down. The jury has disposed of the facts. It is not a case showing any error for which a new trial should be granted.

The judgment and order are therefore affirmed, with costs.

Bocees, J., concurred.