Hubbard v. Apthorp

The question is, what is the proper legal construction of the covenant contained in the deed from James Lloyd to Joy and Apthorp ? This deed purports to sell and convey to the grantees, their heirs and assigns, “ the following described water rights, or lots of land,” describing two separate tracts by metes and bounds, and “also one undivided sixth part of all that certain parcel of flats,” &c., describing them, and appending to the description of the lots by metes and bounds, and of the flats, the following words: “ meaning and intending by this deed to convey all my right, title and interest in and to lots numbered three and six, and my undivided portion of the aforementioned flats.” The deed contains covenants of “ seizin in fee of the aforegranted premises; that they are free of all incumbrances; that the grantor had good right to sell the same; and that he will *421warrant and defend the same premises against the lawful claims and demands of all persons.” It is not contended, on the part of the plaintiffs, that the words in the deed are not proper words to create the several covenants supposed, and as such are obligatory on the grantor ; but they deny that they attach to the particular lands described in the deed. The theory of the plaintiffs is this, that the conveyance is to be treated as a conveyance only of the right, title and interest of the grantor in the land described; and the covenant is supposed to be coextensive with such grant only, and not to extend further. In other words, it is contended, that the warranty of the grantor is limited to “ his right, title and interest,” whatever that may be. The effect of covenants of warranty attached to a conveyance merely “ of the right, title and interest ” of the grantor, was somewhat considered in the cases of Blanchard v. Brooks, 12 Pick. 47, and Allen v. Holton, 20 Pick. 458; and the cases cited for the plaintiffs do to some extent sanction the views contended for by their counsel as to the limitation of the covenants in such cases. It seems to us, however, that it is unnecessary to consider particularly the effect of a covenant of warranty in a deed, where the only thing described in the premises, as the subject of the grant, is “ the right, title and interest ” of the grantor, as was the case of Allen v. Holton, above cited. The construction of a deed is to be such, if possible, as to give effect to the intentions of the parties; and therefore where it is a mere conveyance “ of all the title of the grantor,” it may be held, that the covenants have no application beyond the words of the grant itself. But the present deed is one purporting to convey by particular and definite boundaries various tracts of land described in the premises of the deed, adding, however, to the description of the lands the words “ meaning and intending by this deed to convey all my right, title and interest in and to lots numbered three and six, &c., and my undivided portion of the aforementioned flats; ” — “ the same being subject to each and all the conditions, *422covenants and restrictions contained in the deeds of Jabez Hatch, I. P. Davis, and the division deed.”

As it seems to us, this second description was added rather for fulness and certainty, than with the view of any limitations as to the tracts of land conveyed; the first description setting forth lots numbered three and six, and the parcel of flats, by their boundaries; and the second being adapted to embrace all the interest of the grantor-in lots numbered three and six, and the flats however bounded. There might have been also the further purpose of introducing the limitation, upon the conveyance, of the conditions and restrictions contained in the deeds therein referred to; which restrictions or conditions do not, however, affect the question, whether the covenants are applicable solely to the actual title of the grantor.

It is true, as was suggested by the counsel for the plaintifl, that explanatory words may restrain the general words, and limit their effect. But it must clearly appear, that such was the purpose intended by them. If the explanatory words are consistent with the general words, and not apparently restricted, but added rather for greater caution, and to guard against any misrecital, we give effect to the general description, rather than to the explanatory words, if there be any discrepancy, and the general description be perfect in itself, and easily susceptible of a practical application. This was so held in Melvin v. Locks & Canals, 5 Met. 15, and in Eliot v. Thacher, 2 Met. 44, note. In the view we take of the case, the covenants were of general application to the land conveyed, and the plaintiffs are not entitled to maintain their action ; the estate of the grantor Lloyd being bound to indemnify the defendant by reason of the covenants in the deed to Joy and Apthorp. Plaintiffs nonsuit.