CHAPTER CIV. COVENANT TO CONVEY LANDS. VOL. IV. Сн. 104. Art. 1. Card & al. P. 287. 11. When a covenant of seisin is broken as to part of the land conveyed, the relative value of that part compared with the 2 N. H. Rep. consideration paid for the whole, furnishes a rule of damages. 175, Ela v. If a deed describe the premises as containing two hundred acres by measure, this does not amount to a covenant they shall concontain two hundred acres. A covenant against incumbrances is not broken by a mortgage on land the covenantee is bound to pay. Covenant for rent cannot be sustained against a person, p. 387. without some proof of some privity of contract. p. 458. § 2 con. How a recorded deed may extend the seisin of the ART. 3. grantee entering under it. Where one takes a deed of a tract Con. of land well bounded in it, and enters on a part, he gains possession, in law, only of that part, for of that part can others or the public see his possession and seisin. But when he records his deed and enters his deed, there is a public record, that gives notice to all of the extent and nature of his claim and possession; 2 Greenl. 176, 178, 275, 298; and below. The statute of Maine 1821, ch. 62, s. 6, was enacted to abolish the common law distinction between a possession under a recorded deed, and one not recorded; attaching the same legal effects to both deeds, as against the demandant this section is constitutional, as it impairs vested rights, so far as it is retrospective. Says Mellen, C. J., 2 Greenl, 257, this section appears to have been enacted with a view, and for the purpose of abolishing the distinction well known to have then existed between possession under a claim of title on record, and a possession without any such claim or pretence of title.' As to these distinctions many cases may be found in this work to establish them; and especially in this and ch. 178. 3. But a tenant for a year may hold over pay rent to a stranger, and refuse to quit, and yet not so disseise the lessor, as to prevent his conveyance of the land to a third person. The grantor, Porter, sued to recover the land, thinking he was des siesed. When he, (Porter,) made his deed to Grant, the demandant counted on his own seisin and desseisin by Hammond, who pleaded in bar, that the demandant being seised of the premises, by his deed of Feb. 10, 1821, bargained, sold, and conveyed the same to one William Grant in fee.' The demandant replied, that at the time of making that deed he was deseised of the premises by one Henry H. Snow, and traversed his own seisin, on which issue was taken. To support this issue, the demandant, on his part, proved, that in Feb. 1821, the tenant being in the occupation of the land, paid rent there Art. 3. VOL. IV. fore to Snow. The tenant proved a lease in writing, that exCH. 104. pired Jan. 1, 1820. McGaw, Porter's attorney, testified, after the lease expired, he often called on the tenant to quit, and he refused, and continued possession when this action was brought. Held, he was but tenant at sufferance to Porter, who was nonsuited. It may be observed, the defence pleaded was, that the demandant had parted with his title to a third person; 3 Greenl. 188-190, Porter v. Hammond: see Atkyns v. Horde, ch. 178, a. 14, s. 12; Blunden v. Baugh, ch. 133, a. 2, s. 20, 1 Cruise. 272, 273; Pray v. Pierce, ch. 92, a. 2, s. 7; 1 Murph. 114. Adverse possession defeats the deed and warranty in it: as a deed made in Kentucky before the act of 1798, with warranty conveying land to the adverse possession of another. Held, this was void, and the warranty was no estoppel to the heirs of the 1 Marsh. 494. grantor. 6 Cowen, 677– 681, Jackson v. Vermelyea. § 9 con. Adverse possession. Ejectment for twentyfive acres of land, including a grist mill, a lease of a tract of land, and the lessee's actual possession of a part, with a claim of title to the whole, constitutes an adverse possession of the whole, and no other person can convey any part of it, even with an adjoining tract not so possessed: 2. A mill site reserved reserves the soil, pond, and sufficient adjacent land for the use of the mill. 1 N. H. Rep. § 13 con. A gave a deed of land to B, and before it was 9-13, Tomson recorded it was accidentally burnt, and the parties to it agreed v. Ward. to consider it as given up and cancelled, with intent to revest the estate in A. Held, as between A and B, and as to all subsequent claimants under them, this operated as a reconveyance and revested the estate in A, then no other person having acquired a right in the land under B. The New Hampshire act of February 10, 1791, sect. 1, enacted that no title to real estate greater than an estate at will shall be passed but by some instrument in writing. By this the estate could not repass from B to A but by such instrument; but it seems this act was worded as was the province act, which anciently received the above construction, and in conformity thereto the court construed the act of 1791, not saying how, otherwise, they would have construed it. Second purchaser. See ch. 109, a. 10, s. 4. 26 con. 2 Greenl. 176-178, Little v. Magquier, held, an entry on land under a deed recorded, and paying taxes, is no evidence of a disseisin of the true owner unless the person who entered has continued openly to occupy and improve it: 2. Though the deed may not convey the legal estate, yet the possession of a part, claiming all by the bounds expressed in the deed, may be considered as possession of all, and as a Art. 3. disseisin of the true owner of the whole tract. Was trespass VOL. IV. for cutting and carrying away trees, between February 8, CH. 104. 1814, and February 8, 1820. Pleas. 1. General issue: 2. That the soil and freehold in lot numbered fiftyseven was in Robert Waterman: 3. That the soil and freehold was in Robert Snell and the heirs of Edmund Magquier, which were traversed and issues thereon. To constitute a disseisin, the 2 Greenl. 242disseisor's possession must have been adverse to the true owner's 249, Little v. Libby. title, as well as open, notorious, and exclusive: 2. The parol declarations of a person in possession of land are admissible to show the character and intent of such possession, notwithstanding the statute of frauds. Was trespass quare clausum fregit, tried on the general issue. See also 2 Greenl. 275298, Kennebec Proprietors v. Laboree & al. same principle. The grantee enters under a recorded deed on part and openly occupies, &c. he gains possession of all in the deed, though the grantor had no legal title; for the record shows the whole lands. orne v. Haines. § 28 con. If A be disseised and then grant to B, and he 1 Greenl. 238 enters, he is a trespasser; and having gained possession by his-247, Hathown wrong, he cannot use his deed to render his continuance in possession lawful. This is void ab initio: also when one is actually and not colorably disseised of lands and dies, they are not liable for the payment of his debts. 2 Green). 312. 3 con. Unless the adverse possession of a part be by actual ART. 4. inclosure or exclusive possession, possession of part is of all. C 1 Har. & Mc H. 521, 523, Smith's lessee v. Smith, &c. Principle holds as to goods, hence if they be sold to two different persons, by conveyances equally valid, he who first 17 Mass. R. legally gets possession will hold them. 110-116. 14. A possessory right is never to be presumed so as to 1 Bay. 487. defeat a legal conveyance, but must be actually proved. 1 Nott & Mc Cord, 380: possession of part is possession of all the land covered by a party's title, nor will a river running through the whole tract sever the possession; and 1 Nott & Me Cord, 356, where the plt. has title to the land, an entry gives sufficient possession to maintain trespass quare clausum fregit; but where he does not rely on title, but on possession only, there the possession must be a possessio pedis. 1 Hawks, 485. Possession alone is enough to maintain trespass against a wrongdoer. Adverse possession, ch. 178, a. 14, s. 25. 15. What adverse possession avails or not. To consti- Jackson v. Campb. 1 tute adverse possession of land, an entry under a claim of title, Cowen, 605is in general sufficient, and it is not material whether the title 613. prove to be valid or not: 2. But if the claim is not founded 42 VOL. IX. 330 Art. 4. COVENANT. VOL. IV. on a deed of conveyance or a writing, the possession is limited CH. 104. to actual occupancy and substantial enclosure, which must be definite and notorious: 3. To support constructive possession beyond these, grounded on actual occupation of part only, it is essential the writing relied on as evidence of title include the land not occupied : 4. If one contract for a deed on condition, and enter into possession of the land described, he does not hold adversely till he performs the condition for his possession is not hostile ab initio : 5. To bar a right of entry a possession must not only be hostile in its inception but must continue so for twenty years: 6. Where one contracts for a deed afterwards executed, this extinguishes all claim under the contract, though the deed vary from it, the contract becomes a nullity: 7. The extent of the adverse possession must be determined by the deed alone: 8. Any monument, as a river, or spring, or even a marked tree, controls both course and distance. This case is a good summary of many other cases. See Boundaries, Ejectment, Possession, &c. in Jackson v. Hubble, 1 Cowen, 613622. the Index. 16. The effect of a quitclaim, deed of. only possession passes only a possessory title: 2. If the grantOne having or afterwards acquires the absolute title it does not inure to the grantee's benefit: 3. Secus, if a deed with warranty, as this estops: 4. A, in possession, claiming title, and has no other right, conveys by quitclaim deed to B, he enters and improves a part, claiming all-A remaining in the possession of the residue-this is B's possession, and B may have ejectment against A, or any one in by after possession, without title, &c. 5. A and B, adjoining owners of land, agree on a division line between them, and hold and occupy accordingly for twentynine or thirty years, they are bound by it, though it is not according to their title: 6. The grantor in a quitclaim deed is a competent witness for the grantee in ejectment brought by him for the land conveyed: 7. A quitclaim deed operates only as does a release, that is, to convey what the grantor or releasor has. See Release, chapters 86, 110, 167, 178. ART. 1. CHAPTER CV. COVENANTS THAT RUN WITH THE LAND, &c. 38. Action of covenant on a lease dated February 4, 1799, by which Anderson, as lessor, leased to one Warner, his executors, administrators, and assigns, a dwelling house . Anderson. and lot in the city of New York, habendum to him and Lametti and others, ex'rs. thein from May 1, 1799, for the term of twentyone years at a rent of $165. Warner, for himself, his executors, administrators, and assigns, covenanted peaceably, &c. at the end of the term to surrender, &c. to Anderson, &c. the demised lot, together with all such buildings and improvements as might be then remaining thereon,' Warner, &c. paying rent, &c., and Anderson, the lessor, his, &c. paying for such of the said buildings and improvements as might be erected and made thereon by Warner, his executors, administrators, or assigns, in the manner thereinafter - mentioned. "The parties then mutually covenanted and agreed, for themselves severally and for their several respective heirs, executors, administrators, and assigns, that it should be lawful for Warner, his executors, adininistrators, and assigns, at his and their proper costs and charges, during the term, to take down the dwelling house, standing on the demised lot, at the date of the lease, and erect thereon such buildings as he, his executors, administrators, or assigns, might think proper; that all such buildings and improvements as should be so erected and made, and remaining on the demised lot, at the end of the term, should then be valued and appraised by indifferent persons, one of whom should be chosen by each of the parties, or by their respective legal representatives; and in case the two persons could not agree in the appraisement, then they should choose a third indifferent person, and such three persons, or any two of them, should make the appraisement in writing, under their hands and seals; and that thereupon the defendant (Anderson,) his heirs, or assigns, should pay to Warner, his executors, administrators, or assigns, the amount of the valuation, provided that such amount should not, on any account, exceed $1500.' On these facts the court held, 1. That this was neither a building or repairing lease: 2. That the covenant to pay extended to a new building to be erected at the option of the tenant: 3. That though the old house was not taken down, and a new one erected, yet the lessor was liable to pay for such additions to, and alterations, of the old house, as amounted to improvements. Not, however, to ordinary repairs, such as new roofing the old house, or rebuilding the chimney. The term was passed by mesne assignments to Lamnitte. He died, and his executors brought an action on Anderson's covenant to pay for the improvements, and the main question of difficulty was if these covenants pass with the land so that an assignee or his executors, &c. could sue on them in their own names: held, 2. The covenant run with the land, the term, which having passed to Lamitte by assignment, before the covenant was broken, carried the cove VOL. IV. CH. 105. Art. 1. Con. |