Aborn v. the Bank of North America

7 R.I. 98

• Court: Supreme Court of Rhode Island
• Decided: September 6, 1861
• Status: Published

Opinion

Brayton, J.

The defence set up in this suit is, that the plaintiff has not performed the stipulation in this agreement on his part to be performed, and this defence is founded upon the language of the proviso to the contract, — “ provided it be determined in said suit that the said Aborn has a good title to said land.” It is this, that, although said Aborh has, in the suit prosecuted by him against said Mead, succeeded in establishing a fine which, when extended in the same course to Broad street, would include in the lot conveyed more than the twenty-nine feet and three-fourths of an inch for which no payment had been made, and it has been determined in the same suit that he, Aborn, had a good title to the land sued for, that suit did not determine that Aborn had a good title to the land described in the deed beyond what had been paid for by the bank, and that the words in the proviso, “ said land,” refers not to the land for which suit was to be brought, but to the land described in the deed and not paid for.

If the defendants mean, that Aborn’s title to the land described in the deed should be so established, that the judgment in the suit could be pleaded in bar or given in evidence, in a suit therefor between Mead and the bank, it was a condition clearly impossible. The suit, which, by the contract, Aborn was to commence, could not, in the nature of things, so determine his title, because, first, the suit was to be between other parties than Mead and the bank, and for other land than that conveyed : and, secondly, Aborn had already conveyed to the bank all the land described in the deed, if he had title at the execution of the deed, and to prove that he then had title was only to prove that, at the time of this contract, it was not in him, but in the bank.

In penning this agreement, it was clearly in the contemplation of the parties, that through the instrumentality of the suit provided, the validity of Aborn’s conveyance, as to the land not paid for, would be settled to the satisfaction of the parties ; that they intended to abide by a determination in a suit in which the title to the particular land should not come directly in issue, but indirectly only, and in which the bank should not be involved as a party plaintiff or defendant, and down to the proviso, the parties are providing how it was to be. done, viz., by the establishment, in such suit, of a boundary line, — one line, — -as the north line of Aborn’s remaining land ; and as the north line of his entire lot, both the land conveyed and the land now to be sued for, was one or the same straight line from Broad street to the river, the line determined in the suit need only be produced to Broad street, to determine where was the true north line of the land conveyed.

It is not to be presumed that the parties, having this purpose in mind, and having provided this mode of carrying it into effect, intended, by the words of tho proviso, to nullify the contract, and require a suit to be brought and prosecuted which could determine nothing. This should be rejected as impossible. We are bound to give some other effect to these words which shall be consistent with what precedes, — with what is, beyond question, the general intent and purpose of the parties.

The proviso shows great caution, or, as it might be characterized, extreme caution; it may be, a wise caution. The suit, in the terms of the contract, might be brought against any one, — not Mead only, but any person occupying the Aborn land east of the land conveyed, or any portion of it. The mere occupant might not claim title. The title might not b,e put in issue in such suit; the mere right of possession only might be put in issue, and a line thus determined would not be satisfactory. The proviso requires, that the title to the land involved in the suit shall be put in issue, and, up to the line so found, shall be adjudged to be in Aborn.

Indeed, the only way to give effect to the proviso, without avoiding the whole agreement, is, to refer the words, “ said land,” to the land which might be involved in the suit to be brought, and not to the land conveyed by the deed. ~We think, therefore, that within the meaning of this contract, the plaintiff has performed on his part what he stipulated to perform; having commenced his action in good faith, for the purpose of establishing the north line of his land, and succeeded in establishing a line, which, when extended in the same course, includes in the lot conveyed more than the width of twenty-nine feet and three-quarters of an inch, and procured a determination in said suit that his title to the land bounded north by said line is good; and judgment must be for him, for the price of the land thus shown to have been conveyed and not yet paid for, at the rate stipulated amounting, with the interest thereon, to the sum of $1727.71.

Note. — Judge Bosworth did not sit in any of the oases reported as heard and determined at this term, or after it; being confined to his house, whilst he lived, by the disease (consumption) which terminated his life on the 10th day of June, 1862.