Carbee v. Hopkins

41 Vt. 250

• Court: Supreme Court of Vermont
• Decided: August 15, 1868
• Status: Published

Opinion

The opinion of the court was delivered by

Puout, J.

Upon these exceptions, but two questions are open to the plaintiff, and on the argument counsel so regard it.

I. The plaintiff claims title to the premises in controversy', by virtue of a deed from Mrs. Mary C. Dewey, and by virtue of a tax-sale to her husband on the 17th of March, .1840, the record of which was introduced in evidence. To the validity of the collector’s sale the defendant urges two objections : first, that the record does not show that the original warrant directed to the collector, and the certificate of his oath, were returned to the town clerk for record, as the statute requires; and second, that the list of unredeemed lands was not recorded. Granting that the statute is imperative, and requires the record of the town clerk to be made from the original, it would be a forced presumption, in the absence of all evidence warranting it, to suppose that he resorted to any other medium for the purpose of making the record. It may be competent to show it, but it is quite a different matter to infer it. The statute (Gen. Sts., ch. 15, § 32) .in relation to the duties of town clerks, provides “ that he shall record "at length * * * all deeds and other instruments and evidences respecting real estate,” and contemplates that the record shall be made from the original instrument. It means copying it into the public records, and it was never suggested to our knowledge, that, to be valid as a record, this must appear from the certificate of the town clerk. That is presumed, aud, to avoid the effect of the presumption that the acts of a public officer, apparently regular, are in compliance with the law prescribing his duty, it must be shown to be otherwise ; and this presumption applies, with equal reason, to the record of a collector’s sale, as to the record of a deed. This being so, and the entire record in question standing in the order and connection it does in the book of records, we think the certificate of the town clerk, “ Received for record and recorded and examined,” under' date of April 7,1840, authenticated or verified as it is by him in his official capacity, refers and applies to the entire record, the proceedings and sale, including the warrant and certificate, as a complete and perfected record of the sale. Nor do we think the second objection urged to the validity of the collector’s sale, tenable. If it were, the community would lose the benefit and security of a great proportion of the early records of the state, including judicial records. The statute, it is true, requires town clerks to procure suitable books and make their records in them; but what is a suitable book for that purpose, admits of a diversity of opinion and considerable latitude of construction. The validity of the record can not depend upon a rule so indefinite and uncertain. Whether a record or not, depends upon the fact whether the deed, instrument or paper has been recorded in the public records by the proper officer, or.by his direction and under his supervision ; there being no fraud or material mistake committed in respect thereto. This record, appearing regular and full in the particulars referred to, is not defective for either of the reasons assigned.

II. The question then is, and it is the important inquiry in the case, has the plaintiff Dr. Dewey’s title, which he in his lifetime acquired by virtue of the collector’s sale ? Dewey having deceased, the plaintiff derived title, if at all, by virtue of the deed from Mrs. Dewey, the executrix of his will. By the will Dr. Dewey gave, substantially, all his estate, including the premises in controversy, to Mrs. Dewey, and, by her deed to tbe plaintiff, slie purports to convey them by virtue of a license granted by tbe probate court; and, as tbe case shows, this license was not produced or introduced in evidence on tbe trial. In the-deed, Mrs. Dewey not only recites tbe license, but she enters into' certain covenants expressed in this language: “ And I, tbe said Mary O. Dewey, covenant with tbe said Thomas Carbee” [plaintiff], “ bis heirs and assigns, that tbe said John Dewey died seized and possessed of tbe granted premises; that I am duly authorized by tbe court aforesaid, to convey tbe same to tbe said Thomas Carbee in manner and form aforesaid; that I have-in all things observed tbe directions of tbe law and the license aforesaid, in making said sale; that said premises are free from all incumbrances, and that I will, and my heirs, executors, and administrators shall, warrant and defend tbe same against all persons claiming tbe sameand it is executed by her as “ executrix as aforesaid.” Tbe collector’s sale being valid, she acquired title to the premises under tbe will of her husband, Dr. Dewey, and it remains where the will placed it, unless her deed is an effectual and operative conveyance to tbe plaintiff. Regarding Mrs. Dewey as interested in tbe disputed premises only as executrix., her deed was tbe execution of a power existing under tbe law, conferred by tbe probate court, authorizing her to sell tbe real property of. her husband’s estate, for purposes contemplated by tbe statute. When so authorized, she could convey tbe title,, to tbe same intent and effect tbe testator could in bis lifetime. But tbe will must be proved. Unless it was, she was without' authority to act on behalf of tbe estate; and, in making title under her deed under such circumstances, it was necessary to produce in proof tbe license, as well as to prove tbe allowance of tbe will. Her power as executrix, to convey, was derivative, and her authority must be shown, as well as that it has been substantially pursued in form; and this can ordinarily appear only from tbe probate records properly authenticated. Tbe recitals in tbe deed are insufficient for that purpose, however it might be as between Mrs. Dewey and her grantee, the plaintiff.

But it is claimed, inasmuch as Mrs. Dewey was substantially .the sole legatee in the will (and this is conceded, as well as its exe'cution and proof, in the argument), no claims of creditors intervening, and having by the deed referred to conveyed the premises in question, with personal covenants against incumbrances and of warranty, binding herself and heirs thereto, that it operates as an effectual conveyance by way of estoppel. There is no imperfection in the execution of the deed, and the language in which those covenants are expressed, is not only emphatic, but, in connection with the habendum clause, is a direct assertion of the grantor that the grantee, his heirs and assigns should have and hold the estate therein described, to their own use, without qualification. The case is one, then, which by matter of deed comes within the reason of the rule that “ a man’s own act stoppeth or closeth up his mouth to allege or plead the truth,” if not within a broader scope sometimes given it, actually to pass and transfer the estate. And, we must say, in view of what the parties designed to accomplish, as indicated by the language of the conveyance, and all its parts, and understanding that as no doubt the fact really is, it would be doing no violence to legitimate and fair construction, to hold that the parties to this deed intended to convey and receive such title as Mrs. Dewey had as executrix, and, if that was invalid or ineffectual for any reason, such title as she had as legatee under the will, and to give it effect accordingly. In the instrument she appears in both her official and private capacity or right. The will gave her the premises; she owned them; the grant is in her name, and she, not as executrix, covenants to warrant and defend the same against all persons. In Brown v. Edson et al., 23 Vt., 435, Redeield, J., alludes to the question which arose in that case upon an administrator’s deed. He says : “ But in the particular case, if the deed attempted'to be proved, was properly in evidence, and the identity of the parties shown, the title would be in the administrator himself, instead of his intestate. In such a case it becomes a grave question, whether the grantor is not estopped to deny that whatever title he possessed did pass. I should, for one, be inclined to believe such must be the effect of his deed. It has often been held that the owner of land who stands by, and aids in the execution of a deed of such land. by a stranger, and himself becomes a witness of the conveyance, is thereby estopped to deny that the title passes; a fortiori, if he gives a deed of land himself, although as administrator of some one possessing no title, and of whose estate he has no legal administration.” The force of this reasoning is apparent, and must strike all minds alike; and as affected by the same principle, are cases where, it appearing by covenants contained in the conveyance itself, “ that the parties intended to convey and receive reciprocally a certain estate, they have been held to be estopped from denying the operation of the deed according to that intent.” Rawle on Covenants, 407, note 2; Jarvis v. Aikens et al., 25 Vt., 635, and cases there cited. This the defendant does not controvert, as applied to the plaintiff and his grantor, but claims that he is not affected by her deed or covenants, as he is not in legal privity with, or claiming through her. Rawle (supra), 408, says an estoppel has an ordinary and extraordinary effect. In the one case it is “personal in its character, like the rebutter in a warranty, and estops thte grantor and his heirs from doing or alleging anything contrary to the tenor and effect of his sealed instrument.” In the other, “ besides this quality, it possesses the high function of actually transferring every estate, present or future, vested or contingent, to the feoffee, conusee, or lessee, according as the mode of assurance employed is a feoffment, a fine, or a lease.” The former effect applies as against parties and privies, but by the latter, when a party conveys with warranty, an estate is called into being as against the grantor, and the deed inures to the benefit of the grantee and in discharge of the grantor’s covenants. Middlebury College v. Cheney, 1 Vt., 336 ; Blake v. Tucker, 12 Vt., 39. In Jarvis v. Aikens (supra), Beknett, J., says the estoppel “ becomes a muniment of title,” arising and existing in that case from a mortgage deed containing covenants. With equal reason, this effect arises from an administrator’s or executor’s deed containing such covenants, possessing the quality of working upon the grantor’s interest in the premises to which the covenants relate, and of transferring it to his grantee. Otherwise, the party for whose benefit the conveyance was intended, might find himself remediless at law, as against a mere intruder or stranger to all title. The objection, urged against this view, is that the plaintiff’s remedy is in chancery ; that the deed conveys only an equitable title, which is invalid at law. We have no occasion to question this distinction as recognized in some of the cases. In the present case, the facts are marked, and in the aspect they present the question we consider and determine it. At the time Mrs. Dewey delivered this conveyance, she had the title and owned the premises, and by that conveyance she intended to convey them to' the plaintiff. The defendant is a stranger to all title, so far as appears, but puts his defense upon the ground, so far as this branch of the case is concerned, that the plaintiff’s grantor has the legal title notwithstanding her deed. We think, under the circumstances, if he attempts to shelter himself in the' shadow of her claim, that her deed must have the extraordinary effect alluded to, as to him, that it has as against Mrs. Dewey, and that he can stand in no better position than she does, or could, were she the party defendant in the action.

The judgment of the county court is affirmed.