Stubbs v. Page

Mellen C. J.

delivered the opinion of the Court, as follows»

The question in this case is presented to us by a special depmrrcr to the pleas in bar. — The action is covenant broken, founded on certain covenants in the defendant’s deed.--That which the plaintiff relies upon is in these vrords, — “ and I do 11 covenant with the said Stubbs, his heirs and assigns, that the “ taxes aforesaid were assessed and published and notice “ of the intended sale of the said lands givén according to laxo.? — ■ The defendant after craving oyer of the deed, pleads to. the breach assigned touching the assessment and publishing of said taxes as follows, viz. “ that the assessors of said town of' FrmkV fort did assess said non-resident proprietors’-land named in “said deed in the sum of Si3, — and did publish and commit “.said assessment,” &c. — To this plea there’is a demurrer and one cause assigned is that it does not state that the assessors did legally assess, &c. — It does not seem necessary for us to notice any of the other pleas, or any of the causes of demurrer. — The counsel for the defendant contends that his plea is good, because it is as broad as the covenant, though not as broad as the language pf thc breach as assigned ; — and as the deed is by the pleadings become a part of the record,, the i’easoning of the counsel, is correct, provided his construction of the. covenant in question be correct. — We are thus carried back to the covenant before quoted ; and the true construction of it must decide the action ; because’the declaration states that the original proprietors of the land have recovered it from the plaintiff, on account of the illegality in the assessment of said taxes and in the proceedings of the defendant, the collector; and none of these facts have been denied.

The argument of the defendant’s counsel is that the concluding words of the covenant, “ according to law,”, ought not to be considered as having any connection with or-reference to the assessment, but only to the legality of the notice of the intended* sale, — The counsel for the plaintiff contends that they must be applied to all that precedes in the same sentence, in the same manner as the word “ covenant” in the beginning of the sentence must necessarily be considered as applicable to the whole. — The arrangement is such and the language is so express, that tye do not feel ourselves warranted in givigg tp the

covenant the limited construction which is contended for by the defendant. — He was under no obligation to enter into such a covenant, but still he has done it; and he must abide the consequences of his own contract. — It is not the duty of a Court to explain away the plain language of parties, or defeat their expressed intentions by refined distinctions; — but to give a natural construction, presuming that such was expected when the deed was written. — Besides, we are bound to suppose that all the words of the deed were inserted for some purpose ; and for what purpose was the assessment mentioned in the sentence, unless to be embraced in the covenant? — Was it for mere information to the plaintiff? Was it a statement of a simple truism, qbput which no one would ever doubt ? The words of a cove-pant should be cpnsfrped with reference to the object and design of all covenants ; which it is well known are entered into for the purpose of conveying some beneficial rights to the covenantee — We are therefore satisfied that according to the true construction of the covenant in question it must embrace the assessment, as well as the publishing of the taxes and the legality of the notice of the intended sale; and of course the plaintiff is entitled to r.ecover. — As to the question of damages, the rule is well settled. — Where nothing passes by the deed ; no seisin in law or fact; the purchaser is entitled to recover the consideration, and interest, and nothing more. — In the case be-¡ fore us, the collector hot being spz$d himself and his deed being void as a conveyance, it passed no estate whatever; it gave no seisin or possession to the plaintiff. Of course he could not fie evicted of an estate which he never had ; and therefore the expenses incurred by him in defending the action - brought by the proprietors, cannot be allowed by way of damages. He should not have entered and exposed himself to a suit. See 2 Mass. Bickford v. Page, 455.; and Cushman v. Blanchard, ante, p. 266. and the cases there cited.

Pleas in bar adjudged insufficient.