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reasonable notice of the extent of the incumbrance."

Andbews, C. J. These are two actions between the
same parties brought on separate mortgages and each claim-
ing a foreclosure and the possession of the same land. It
appears that on the first day of June, 1887, the plaintiff
owned two tracts of land, one containing ten acres and the
other, his homestead, containing one acre. On that day he
mortgaged both pieces to Thomas A. Nelson to secure his
note for $1,100, payable to said Nelson, or order, on demand,
with interest. On the 29th day of the same month he sold
and conveyed the ten acre piece to Wm. B. Kilbride, by a


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DECEMBER, 1889. 115

King V. Kilbride.

deed ht vhich the covenant against incumbrances and the
covenant of warranty were as follows : — " And that the same
is free from all ineumbrances whatsoever, except a certain
mortgage to Thomas A. Nelson dated June Ist, 1887, for
il,100. And furthermore I, the said grantor, do by these
presents bind myself and my heirs forever to waiTant and
defend the above granted aud bargained premises to hiiu
the said grantee, his heirs and assigns, against all claims
and demands whatsoever.*' On the same day Kilbride mort-
gaged the same land to the plaintiff to secure the sum of
$1,500 by a deed in which the covenants were identical with
the covenants in the plaintiffs deed to him. Kilbride orally
agreed to assume and pay the note to Mr. Nelson as a part
of the payment for the land. He went into immediate
possession of the land so conveyed to him, and on the 15th
day of August following conveyed a portion of it to the
Fountain Water Company, by a deed containing all the
covenants without any exception. All of these deeds were
put upon record at once.

It is found that the Water Company had no notice, actual
or constructive, of the oral agreement by Kilbride to pay
the Nelson mortgage, except so far as the recording of the
deeds is such notice. And it is also found that the Water
Company took its deed in good faith and paid full value for
its land.

The plaintiff has remained ever since the owner and in
possession of the homestead. Kilbride proved to be insol-
vent and left the premises. And the plaintiff on the 27th
day of October of the same year, in order to protect his sec-
ond mortgage interest in the ten acre tract, purchased of
Mr. Nelson the note and mortgage which he had previously
given to him, and Mr. Nelson thereupon transferred and as-
signed to the plaintiff, by a proper release deed, all his right,
title and interest in the note and mortgage, and the same are
now the property df the plaintiff.

The first action is brought by the plaintiff as assignee and
holder of his own note to Mr. Nelson, and in the complaint
be claims a foreclosure of the ten acre piece, with possession


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116 DECEMBER, 1889.

King «. EilbriJe.

of the same, unless the Water Company or Kilbride shall
pay the whole amount due on that note. The defense in
this action sets up, among other things, the covenant of war-
ranty contained in the plaintiff's deed to Kilbride. The
reply to the defense is a denial. The judgment apportions
the debt between the two pieces of land mortgaged by the
plaintiff to Mr. Nelson according to their value, and decrees
a foreclosure of the ten acre piece unless the defendants or
one of them shall pay the sum of f 556.20, and grants execu-
tion in ejectment if the money is not paid within the time
limited. From this judgment the plaintiff and the Foun-
tain Water Company both appeal. The plaintiff's reasons
of appeal are that the court erred in not requiring the de-
fendant to pay the whole of the Nelson note. The second
and third reasons of appeal of the Water Company are in
substance that the court erred in holding that the plaintiff
was entitled to maintain the suit notwithstanding his cov-
enant of warranty.

It appears from the finding that the plaintiff did make the
covenant of warranty as alleged by the defendants and as
appears by his deed, portions of which are recited above.

The covenant of warran ty is a contract by which the grantor
of land undertakes to protect the land granted from all lawful
claims and demands existing at the time of the grant, and the
contract is made not only with his immediate grantee but
with whomsoever may become the owner of the land by a
title derived through the grantee. Booth v. Starr^ 1 Conn.,
244 ; Mitchell v. Warner^ 5 Conn., 498 ; Rawle on Covenants
for Title, (4th ed.,) 834; 8 Washburn's Real Property,
(4th ed.,) 466 ; 2 Sugden on Vendors, (Perkins's ed.,) 240.
It is not necessarily an undertaking that there is no incum-
brance on the land at the time, but it is an undertaking that
the purchaser and his assigns shall at all times enjoy the
land free from all such incumbrances. Williams v. Wether-
beej 1 Aiken, (Vt.,) 233 ; Rawle on Covenants (4th ed.,)
215; Whitney v. Dinamore^ 6 Cush., 124; Muss v. Steele^ 40
Verm., 310.

Of this covenant any act tantamount to an eviction of the


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DECEMBER, 1889. 117

King V. Kilbride.

grantor would be a breach and subject the grantor to dam-
ages. As if the grantee should upon demand yield the
possession to one having a better title ; Sterling v. Peet^ 14
Conn., 245 ; or surrender to a mortgagee by a prior deed.
Handlton v. Cvtt9^ 4 Mass., 849 ; Sprague v. Baker ^ 17 Mass.,
686. A judgment in ejectment would clearly be such an act.

The judgment of foreclosure and ejectment requires of the
defendants a payment of money to their own grantor, and
upon their failure to do so authorizes him to evict them ;
that is — to* do the very act which he has covenanted with
them shall not be done by any one. Such a judgment must
be erroneous. And this judgment is erroneous unless there
is in the case something by which the plaintiff is relieved
from the obligation of his warranty. Is there any such

So far as the Water Company is concerned the oral agree-
ment by Kilbride to pay the Nelson note may be laid out of
the case. It is found that the company had no notice of
that agreement except so far as the record of the deed is
actual or constructive notice. The record disclosed an ex-
press covenant by the plaintiff to protect the defendants in
their possession of the land against all claims and demands
whatsoever. When there is an express contract in writing
respecting any matter there can never be an implied one in
addition to it. Broum v. Fales, 139 Mass., 21. Still less can
there be any implication contrary to the writing. Bumea
Y. Scott, 117 U. S. R., 582 ; Allen v. Bundle, 50 Conn., 9.

It is claimed by the plaintiff that the Nelson mortgage was
excepted out of the covenant of warranty in his deed to Kil-
bride ; that the exception • of it from the covenant against
incumbrances ought to be construed as an exception of it
from the covenant of warranty. This is really an argument
the other way. That an exception was made from one cov-
enant in a deed is an argument that no exception was intended
from any other. It shows that the attention of the grantor
was called to the matter of making exceptions and that pre-
sumably he made all the exceptions he desired to. The
principle applicable is found in the maxim that the express


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118 DECEMBER, 1889.

King V. Kilbride.

mention of one person or thing is the exclusion of others.
Besides, these covenants are distinct and have reference to
different kinds of liability. A man may not choose to guar-
antee his title generally, and yet may readily undertake that
his grantee shall not be disturbed. 2 Sugden on Vendors,
(Perkins's ed.,) 281; ffowell v. Bichards, 11 East, 683, 643;
Estabrook v. Smith, 6 Gmy, 672.

It is further urged that the covenant of warranty in Kil-
bride's mortgage deed to the plaintiff opei^ates in some way
to prevent the Water Company from taking anything under
the plaintiff's covenant of warranty in his deed to Kilbride.
How it has this effect is not shown. The Water Company
is not in privity with either of the parties as to that cove-
nant. That is a matter between other persons by which it
can neither be harmed nor helped. Certainly the plaintiff
cannot be discharged from his covenant to the Water Com-
pany because some one else has warranted the same land to

The equitable doctrine of notice so strongly urged and
apparently so much relied on by the plaintiff seems to us to
have no application in the case. It is not a question here of
notice, but whether or not the plaintiff shall keep his cove-
nant. It cannot be denied that the Water Company had
notice that the Nelson mortgage covered the ten acre piece
of land. It had notice of every thing which appeared on the
record. By the same record from which the company de-
rived such notice it learned that the plaintiff had covenanted
to warrant and defend that very piece of land from all claims
and demands, not excepting the Nelson mortgage. If there
was any defect or uncertainty in the notice which the record
gave it was because the plaintiff was himself wanting in care
in not making his deeds more specific. He is invoking the
doctrine of notice. He ought not to expect others to obtain
more knowledge from his deeds than he put into them. He
certainly cannot take any advantage from his own omissions.
He is the one to be bound by the notice given rather than
the Water Company by the notice received, if there is any
difference ; especially as it is more than likely that the Water


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DECEMBER, 1889. 119

King V. Kilbride.

Company bought its land relying on his warranty and upon
his ability as well as on his willingness to fulfill it.

There is error in the judgment and it is reversed so far as
it is against the Fountain Water Company.

In the second suit a foreclosure and the possession of the
same ten acre piece is claimed unless the defendants or one of
them shall pay the instalments due on Kilbride's note to the
plaintiff and secured by his mortgage deed of the 29th day
of June, 1887. The court ascertained the amount due on
the note the day judgment was rendered to be $46.44, and
decreed a foreclosure unless the same was paid, together
with a judgment in ejectment to be enforced on failure of
payment at the expiration of the time limited. The Water
Company appealed from this judgment on the ground that
the indebtedness sought to be secured by the mortgage was
not sufficiently described in it.

We think there is no error. The judgment in this case is
fully sustained b}'^ the reasoning in the very recent case of
Wtnehell v. Ooney^ 54 Conn., 24, which is applicable to this
case ; reasoning which we have no need to repeat and no
disposition to change.

In this opinion the other judges concurred.

Note. — The point decided in the laet paragraph of the opinion will not
be understood without a etatement of the facts upon which the question of
the insufficiency of the description of the mortgage debt in the complaint
is made. In the complaint the debt is thus described:—

" On the 29th day of June, 1887, the defendant, William Kilbride, owed
the plaintiff fifteen hundred dollars, as evidenced by his note for fifteen
hundred dollars, payable in monthly installments of eighteen dollars each,
the first installment being payable August 1st, 1887, and thereafter on the
first day of each succeeding month till the entire sum be paid, with interest
at six per cent., payable semi-annually, on such sum as should be due ; re-
serving the right to make any payment on said note, of more than eighteen
dollars, at his option."

The note was as follows:—

"Setmoub, June 29th, 1887.

"On the l«t day of August, 1887, I promise to pay to the order of John
King the sum of eighteen dollars, and thereafter the further sum of eighteen
dollars on the first day of each succeeding month until the entire sum of


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120 DECEMBER, 1889.

Hotchkiss 0. Brainerd Quarry Co.

fifteen hundred dollars shall have been paid; any fraction of said sum to
complete said entire sum of fifteen hundred dollars to be paid together with
the last payment, with interest at six per cent, per annum payable semi-
annually upon such sum as shall be due. The maker of this note hereby
reserves the right, which is granted to him by the payee, Uiat he shall have
the right to make payments to any extent upon this note at any time and
to any amount in excess of said eighteen dollars per month. Value re-
ceived." (Signed.)

58 120

|_^ TO

1 68 120 Henry L. Hotchkiss, Trustee, & others vs. The

Brainerd Quarry Company & others.

New Haven Co., June T., 1889. Andrkws, C. J., Cabpentbb, Pardee,
LooMis and Bbabdslet, Js.

a partner in a quarry company, who owned a one eighth interest, died in
1857, leaving by his will to his wife one third of his personal property
absolutely, and one third of his real estate for life, and the rest oi his
property to trustees for his minor daughter. By the terms of the part-
nership it was to be controlled by a majority in interest and was to
continue until such a majority should request its dissolution. A dis-
solution not being desired the property of the widow and daughter re-
mained in the business, and the partnership continued until 1883,
when a corporation was formed, all the partners taking stock in the
proportion in which they held interests in the partnership. The
widow and daughter became entitled to and accepted four hundred
shares in the aggregate, but disagreed as to their respective rights in
them. The property given them by the will and which had gone into
the partnersliip was appraised at the time, the personal at $6,000, and
the real at $19,000. The partnership had in the prosecution of its
business used up most or all of the personal property and replaced it
with other, and had exhausted some of the quarry land and purchased
other, and no separate account had been kept of income as distin-
guished from principal, and earnings had been used in the purchase of
lands and personal property used in the business. The business had
greatly increased and a large surplus had been allowed to accumulate,
which went into the capital of the corporation. H*»ld that the propor-
tionate interests of the widow and daughter in the property which was
allowed to remain in the partnership after 1857 were not changed by
the varying quantities of personal and real estate held by the partner-
ship at different times, nor by the quantity of each at the time that
the corporation took the place of the partnership, and that the stock in
the corporation which represented their joint interest was to be ap-


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DECEMBER, 1889. 121

Hotchkiss V. Brainerd Quarry Co.

portioned between them according to their relative interests in the

property in 1857.
The widow was not entitled to a full share of the increase in the value of

the property as representing profits, nor to any part of the earnings

which the managing parties decided not to distribute in dividends but

to preserve as a surplus.
The power given by the partnership articles to a majority in interest to

manage the business of the partnership and to declare dividends at its

discretion, necessarily involved the power to capitalize profits instead

of dividing them.
And the widow, by agreeing with all the other partners that the entire

property of the partnership should go into the corporation at a certain

sum and constitute its capital, agreed, so far as that sum embraced

profits, that profits should be capitalized.

[Argued June 5th— decided October 30th, 1888.]

Surr by Henry L. Hotchkiss, as trustee of certain pro-
perty for Mary W. Burrows, and by the said Mary, and
her husband Silas E. Buitows, against the Brainerd Quarry
Company, a corporation, and Eliza T. White and her hus-
band Josiah J. White, for an adjudication of the respec-
tive rights of the said Mary W. Burrows and the said
Eliza T. White in certain shares of the stock of the corpo-
mtion, for an accounting and for an injunction ; brought to
the Superior Court in New Haven County, and heard before
Fentiy J. Facts found and a decree passed dividing the
stock in a certain proportion between the parties, and ap-
peal by both plaintiffs and defendants. The case is fully
stated in the opinion.

S. JE. Baldwin and J. T. Piatt, for the defendants.

1. The distribution gave Mrs. Burrows no absolute in-
terest except in certain specific articles of personal property,
described in the will of Mr. Hall as belonging to him at his
decease. All this personal property disappeared from ex-
istence long before the corporation was organized to succeed
the partnership, and with it her right in the personal pro-
perty of the firm ceased to exist.

2. Her title did not spread over any after-acquired per-
sonal property. It is of no consequence to her whether the
firm bought new cattle or tools, quan*ied more stone, or


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122 DECEMBER, 1889.

Hotchklss 9. Brainerd Quarry Co.

made further sales on credit or for oash, except so far as
these things resulted in dividends to her. It is not like the
case of a railroad or mill mortgage, w)iere certain kinds of
property are necessary to the land, or fixtures, and go with
the security as an incident. Here her title to the personal
assets was the principal thing.

8. She had no interest in partnership assets as such. At
her husband's death she was not of age and was incapable
of assuming the relation of a partner, and if she had been
she had no power to vary the rights of Mi*s. White, the
daughter of Mr. Hall and his heir. It was Mr. Hall's es-
tate that remained in the partnei-ship, represented by his
executor. Mrs. Burrows was simply a co-tenant of certain
chattels and choses in action. " An infant may reclaim his
share of the firm's property at any time, on his title as co-
tenant, irrespective of the state of account between himself
and his co-partnei-s." Pai*sons's Principles of Partnership,
§ 137. No interest in the partnership was inventoried or
distributed. This was strictly in accordance with law.
The real estate of Mr. Hall, used by the firm, would have
been treated as partnership property in equity, as against
the widow or heirs in favor of creditors, if necessary for their
protection. But, creditore not intervening, it remained his
real estate. Wilcox v. Wilcox^ 13 Allen, 262 ; Foster's Ap-
peal^ 74 Penn. St., 891; Wheatly v. Calhoun^ 12 Leigh,
264. Unlike personal property or ordinary real estate owned
in severalty, it was here inseparable from the partnership so
long as the latter endured. The partnership articles ex-
pressly provided for this. Frink v. Branchy 16 Conn., 260,
269. And on general principles a quarrying or mining part-
nership is never dissolved by the death of a partner. Fere-
day V. Wightwick^ 1 Russ. & Mylne, 49 ; Skillman v. Lachr
man, 23 Cal., 198 ; Kuhn v. Smelting Co., 102 U. S. R., 641 ;
BisBell V. Fobs, 114 id., 262. This contract of partnership
therefore, as well as the principles controlling mining part-
nerships, left the whole of Mr. Hall's estate at risk, after his
death, for the partnership debts thereafter incurred. Blod-
gett V. Am. Nat. Bank, 49 Conn., 9. This rested the bur<len


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DECEMBER, 1889. 123

Hotchklss V. Brainerd Quarry Co.

on his executors, who, as acting partners, shared the risk
personally with Mrs. White, whose property was left at
hazard. Frazer v. Murdoch^ L. R., 6 App. Cas., 855 ; Par-
sons's Principles of Partnership, § 74.

4. Mrs. Burrows had no interest in undivided partnership
profits. The matter of declaring dividends was by the part-
nership articles left to the managing majority. Duffield v.
Brainerd^ 45 Conn., 424; Straker v. Wilson^ L. R., 6 Cha.
App., 503.

5. She had no interest in new purchases of land. If the
managing majority chose to invest profits in buying more
land instead of making dividends, they had a right to do so,
both by the partnership articles and by the nature of a
quaiTying industry, which requires the purchase of new land
to replace that which is exhausted. Balch v. Hallett^ 10
Gray, 402. It appears that the* pai*tnership spent $170,000
in buying new lands after Mr. Hall died. Under the En-
glish rule this land might have become personal propei-ty
for partnership purposes, but the American rule treats it as
real estate of the respective partners for all purposes of
descent and grant, if not needed for strict partnership pur-
poses. Fair child v. Fairchild^ 64 N. York, 471.

6. When the corporation was formed, and the entire pro-
perty of the partnership was with Mrs. Burrows's consent
put into the 8200 shares of stock, all equities between the
partners were merged in the charter. Hoyt v. Sprague^ 103
U. S. R., 613 ; Francklyn v. Sprague, 121 id., 215. None of
the shares could be considered as representing income in
which a life tenant could share. Brown ^ Lamed' % Petition^
14 R. Isl., 371. The profits undistributed had become a part
of the capital of the corporation. The majority in interest,
by the partnership articles, and on general principles, had
power thus to capitalize the surplus. In re Barton^ % Trusty
L. R., 6 Eq., 238.

JT. Stoddard and J. W. Bristol^ for the plaintiffs.
1. Mrs. Burrows, by virtue of her life estate, is entitled
absolutely to her share in all the earnings and products of


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124 DECEMBER, 1889.

Hotchkiss 9. Braiiierd Quarry Co.

the quarries during her life. By the partnership agreement
the quarries were to be worked and the proceeds divided in
the proportion of one third to her and two thirds to Mrs.
White. The life tenant of such quarries has a right to
work them to exhaustion, and take absolutely the proceeds.
The authorities to this effect are believed to be uniform.

1 Washb. R. Prop., book 1., ch. 5, § 4. art. 18 ; Id., book 1,
ch. 7, § 2, art. 21 ; BUlings v. Taylor, 10 Pick., 460 ; Coate$
V. Cheever, 1 Co wen, 460 ; Moore v. Bollins, 45 Maine, 493 ;
Neel V. Neel, 19 Penn. St., 823; Irmn v. Covode, 24 id., 162;
Westmoreland Coal Co^^s Appeal, 85 id., 844; Shoemaker* %
Appeal, 106 id., 392; Sayer% v. JSbskinson, 110 id., 473;
Stoughton v. Leigh, 1 Taunt., 402 ; Clegg v. Rowland, L. R.,

2 Eq., 160 ; 1 Morawitz on Corp., § 442. The real estate
having been given to Mrs. Burrows in lieu of dower, and
being quarry land, of no value but for quarrying, and at the
time in process of being worked, it is evident that the testa-
tor intended that she should daring her life have all the
benefit from working the quarries to their largest limit. It
makes no difference that some of the proceeds of the busi-
ness were invested in new lands. As between these two
parties these lands will be treated in equity as money, as
they were purchased with funds that belonged absolutely to
Mrs. Burrows as life tenant. Nor can the fact that the
partnership was unable to collect all the proceeds of the
business before the dissolution deprive her of her absolute
interest in those proceeds. Upon the dissolution of the
partnership in 1883 it became necessary that there should
be a distribution of the assets as upon a final settlement of
the partnersiiip affairs. The partnership agreement con*
trols as to the division of the profits during the continuance
of the partnership, but does not affect the distribution of
the property upon the winding up of the partnership. Du/-
field V. Brainerd, 45 Conn., 424.

2. Neither Mrs. Burrows nor Mrs. White gained or lost
any existing rights by consenting to the formation of the
corporation. Tlie former consented to the dissolution of
the partnei-ship and the formation of the corporation with


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DECEMBER, 1889. 125

Hotchkiss 0. Brainerd Qnarry Co.

presumed knowledge of the law as declared in Duffield v.
Brainerd^ that she had a right to demand the dissolution
and thereupon take her share of the property. The case
finds that she never intentionally waived any right. Be-
sides, by the charter of the corporation each partner was to
be allowed such a number of shares as would make his in-
terest in the corporation " proportionate to his interest in
said firm either as co-partner or as equitable owner in undi-
vided profits." Private Laws of 1879, p. 35. Clearly here
was no waiver of rights in undivided profits. It does not
affect the case that there was a valuation of the property
for the purposes of incorporation at $320,000; there was
none the less a fund representing undivided earnings that

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