The only question in controversy in this case is whether or not the covenant in the mortgage deed given by the defendant to the plaintiff bound the defendant to save the plaintiff harmless from all the incumbrances on the land therein conveyed, including the principal sum due to Yale University, or only bound him to save the plaintiff from the interest on that debt and other incumbrances, if any, not including the said principal sum.
The covenant, read literally, is to save the plaintiff harmless from all the incumbrances on the land. This would seem to include the principal more certainly than it does the interest. The principal was an incumbrance then outstanding. The interest, some of it at least, did not accrue until afterwards. The trial court, after hearing the evidence, decided that the defendant was not bound to save the plaintiff harmless from that principal sum.
The circumstances which were shown in evidence and which were supposed to aid the court in the construction of the deed, may be condensed from the finding and stated as follows: Edward P. Yale was the president of the Yale Brick Company, a corporation doing business in Berlin. He desired to obtain control of the stock of that company. A. J. Sloper and John B. Minor, individually and as trustees for certain others, owned $14,500 worth, par value, of that stock. If Mr. Yale could obtain their stock he could control the entire stock of the company. They were willing to exchange that stock for certain pieces of land owned by the plaintiff situated in Meriden, and to give $500 in money in addition. *Page 241 The plaintiff was willing to sell these pieces of land for their fair value, $7,500, but did not want the Brick Company stock. Mr. Yale was apparently without sufficient capital or credit of his own to carry out his plans. The defendant was the son-in-law of Mr. Yale. He had both capital and credit, and was desirous to aid Mr. Yale in getting control of the stock. Negotiations were had by Mr. Yale and the defendant with the plaintiff, the result of which was that the plaintiff conveyed his land to A. J. Sloper and the others. They conveyed to the defendant their stock and gave him $500 in money. The Brick Company gave to the plaintiff its note for $500 and an agreement to deliver to him $1,000 worth of brick. Mr. Yale gave to the plaintiff his three notes, each for the sum of $2,000 with interest, payable in two, three and four years from date, respectively; and the defendant gave to the plaintiff the said mortgage deed with the covenants as therein set forth.
The arrangement between these persons seems to have been a tripartite one. The plaintiff was one of these parties; the defendant and Mr. Yale were another; while Sloper and the others were the third. It may be true that as between himself and Mr. Yale the defendant was only a surety; but in this transaction with the plaintiff, he and Mr. Yale were only one party, just as Sloper and Minor and the persons for whom they were trustees were only one party.
The $500 note of the Brick Company to the plaintiff was paid. The $1,000 worth of brick were delivered; at least no question is made in respect to them in this case. The interest on Mr. Yale's three notes was paid for two years. Mr. Yale died insolvent in November, 1896. His estate has paid nothing. The Yale Brick Company went into insolvency in October, 1896, and nothing has been paid by its trustees. Yale University brought its foreclosure action in March, 1897, against the defendant and the plaintiff, and recovered judgment. The law day for the defendant expired on the first Monday of May, 1898 and for the plaintiff on the second Monday of the same month. Neither redeemed, and the *Page 242 title of the University became absolute. The defendant paid to the University all the interest on said debt, and all the taxes and liens on the property. He did not pay the principal. The value of that property at the date of the mortgage was $12,000; at the time of the foreclosure it was about $8,000, just the amount for which it was mortgaged to the University. The said three notes of Mr. Yale, with the interest after two years from their date, are still due and unpaid.
If by the proper construction of said mortgage deed of the defendant he covenanted therein to save the plaintiff harmless from the principal sum of the debt due to Yale University, then there is error in the judgment; that covenant has been broken, and judgment should be rendered for the plaintiff to recover the damages he has sustained, that is, the amount of the said notes and interest.
The language of this deed is the language of the defendant. He prepared the covenant. If the language is doubtful, it is because he made it doubtful. He cannot have the doubts solved in his favor. He who speaks by any writing ought to express himself with clearness. If he does not do so any doubt must be explained to the advantage of the other party. 1 Sw. Dig. 239; 1 Shep. Touch. 87. Reading the words of this deed in the light of the facts shown by the evidence, and applying to the case the rules of construction we have cited, it seems to us that the plaintiff is entitled to have the covenant read so as to save him harmless from all the incumbrances that were on the land conveyed, including the principal of the University debt as well as the interest and the liens and costs.
In the view of the case which we have taken it is unnecessary to consider the testimony of Mr. John Q. Thayer.
Upon the facts set forth in the finding we think the plaintiff is entitled to a judgment for the notes and interest.
There is error and the judgment is set aside; the case is remanded to the Superior Court to be proceeded with according to law.
In this opinion the other judges, except HALL, J., concurred.