Whiting v. Dewey

delivered the opinion of the Court. The original defendant, Hugo Dewey, with one Hugo Burghardt, as guardians of one Abigail Dewey, a minor, in 1806 conveyed to the plaintiff the tract of land described in the writ, in their capacity as guardians, and in the same capacity, as expressed in the deed, they covenanted with the plaintiff, “ that Benedict Dewey, deceased, died seised of the premises, and that they the said guardians, in right of the said minor, were lawfully seised of the premises.” The original defendant, as the surviving covenantor, is charged in his private capacity with the breach of these covenants ; and the first question is, whether by law he can be charged personally on these covenants. This question was very fully considered in the case of Sumner v. Williams, 8 Mass. R. 162, which, in principle, cannot be distinguished from the case at bar ; and although the Court was divided in opinion in that case, the soundness of the decision by a majority of the Court, has never since been questioned ; and it is supported by a current of authorities, and by well established principles. When parties contract en outer droit, and fail to bind their principals, they are to be held personally responsible. This is the general rule, and is perfectly reasonable and just. The exception is, where the contracting party is a public agent, and contracts on the public account. This exception is founded on public policy, and therefore emphatically proves the rule; for if the rule had not been well established, the exception would have been placed on other grounds than that of public policy.

*434The next question depends on the construction of the grant, as t0 which we think there can be no doubt. The defendant’s counsel have argued, that nothing was granted but Benedict Dewey’s right and title ; and the words of description are relied on to maintain their argument. The words are, “ being all the same land which the said Benedict Dewey, deceased, lately owned in a hundred acre pitch of equalizing land.” If these words were the only words of description oí the estate granted, the defendant’s construction would be well enough; but the language of the deed, before and after the above-cited clause, is entirely inconsistent with any such construction. The grant is, “ of the following described tract of land then follow the above-cited words, and then follows a particular description of the land granted, by metes and bounds ; and this particular description is decisive as to the land intended to be granted, and to which the covenants are to be referred. Very little stress is to be placed on words of recital and general description, as to the extent of a convey anee, when there is a particular description of the lands conveyed, in clear and unambiguous language. Now it is clear in this case, that the land1 particularly described was conveyed ; it is so, in express words ; and the covenant is, that Benedict Dewey died seised of the premises. Of what premises ? Why clearly of the land granted and described by metes and bounds.

Then, was Benedict Dewey seised of the land granted ? The evidence shows no such seisin exceptzas tenant in common of the right and share conveyed to him by Mary Clauson. When he entered on the lot and cut wood and timber, he must be presumed to have entered under the title thus ac quired ; Shumway v. Holbrook, 1 Pick. 114 ; and there was no evidence of an ouster of the other tenants in common. The defendant’s covenant of seisin was therefore broken as to all the hnd excepting the share of Mary Clauson.

With regard to the plea of accord and satisfaction, that is unsupported by any evidence, and no presumption arises from lapse of time, as the defect of title has been but recently discovered.

As to the rule of damages, we have some doubts, and if *435the parties wish it, we are willing to hear another argument. The general rule is, that the purchase money, with interest from the time of the purchase, is to be the measure of damages on the breach of the covenant of seisin. But this case seems to form an exception to the general rule. The plaintiff has derived profits from the land conveyed, for which, by lapse of tinv3, he is no longer responsible ; and thus far he has suffered no damage from the defect of title. In New York the rule is, in such a case, not to compute interest for more than six years back; but no, such limitation has ever been sanctioned in this commonwealth.

The equitable rule in this case would seem to be, to allow the plaintiff to recover the purchase money so far as there was no seisin and title, with interest, deducting the profits received by him or to his use, and for which he is not responsible to the other tenants in common.

Note. — The parties agreed that judgment should be entered agreeably to the rule suggested.