Williams, Ch. J.
1. As to the evidence offered. It cannot seriously be contended, in the absence of testimony on the part of the defendants, but that the description in the defendants’ deed, as connected with the proof of the plaintiff, would include the lot No. 5. ; nor is there much doubt a to its extending to Frink’s line on the West, so as to include lot No. 6., as far North as the Bingham farm. But the defendants claim, that their deed, after describing the several tracts conveyed, refers to the deeds of their grantor, and thus makes them proper evidence, and in that connection, the parol testimony is proper ; and if the deed of Calhoun, their grantor, is so referred to, as to make part of their deed, this inference would seem to be just; for as Calhoun’s deed speaks of his farm in the occupation of Lemon, what composed that farm and what was occupied by Lemon, would seem to be proper subjects of enquiry. The question then arises, does the defendants’ deed, by fair intendment, refer to their deed from John T. Calhoun ?
The deed first describes the two hundred acres about which the controversy arises, and gives the bounds. It then describes the fifty acre lot, bounded South on Nathaniel Church’s land, [430]*430East on highway, North on Hamlin's heirs, West on Daniel Brewster's land; “ reference to their deeds to be had for a more particular description.” Now, what deeds are meant and intended l For when another instrument is referred to, to controul this, it must be referred to in such a manner as to leave no reasonable doubt what instrument was intended. Reference to their deeds ! Was it the deed of John T. Calhoun of the two hundred acres, or the deed of the fifty acres 1 If either of these were intended, it would be very remarkable; because neither the name of John T. Calhoun, nor of the grantor of the fifty acres, appears at all in the deed; nor are we as yet informed who was the grantor of the fifty acres. There is, then, nothing that can be laid hold of, to connect the reference of their deeds with the defendants’ grantor. Indeed, it does not appear from the instrument, that the defendants derived their title to the land in controversy, by a deed from any one. They might have derived it, by descent, or by levy of execution ; unless the reference is to prove the nature of their title, as well as the extent of it. To make this clause in the deed prove, in the first place, that they derived title by deed, and from John T. Calhoun, and that was the deed, or one of the deeds, referred to, would be going very far indeed; more especially, when the grammatical construction is plain : which is a reference to the persons last before spoken of, who have title by deed. As the adjoining proprietors may have deeds, as well as the grantors, the one may be referred to as well as the other; and although it might not be as common, yet it is quite as usual as to refer to deeds of persons not named or described. It is true, indeed, that the grammatical construction must yield, if the intention be plain; but the difficulty here is, the sense is not plain. If we desert the grammatical construction, we are only involved in conjecture.
It is further claimed, that the description in the defendants’ deed to the plaintiff, follows that of Calhoun to them. But before we can look at this deed at all, we are to determine from the defendants’ deed itself, whether we can look at Calhoun's deed for explanation ; and we are not first to look at it, to see if it will give the explanation. The fact that it will prove the proposition to be established, will not prove that it is admissible for that purpose.
It is also said, that the word “ their” in connection with the [431]*431words “ more particular description,” show, that it must mean of the premises conveyed. Now, when a full and apparently perfect description of the land conveyed had been given in the deed itself; when no allusion whatever had been made to the grantors claimed; and those grantors had not even been named; and when the ambiguity is bf their own creating, it is too much to presume, in the first place, that they derived title by deed to the lands conveyed, and that a general reference of this sort must be intended to apply to the deeds to them, in order to correct the errors, or supply the deficiency of the deed in question. If, as is probable, there has been a mis-description, let the proper forum be resorted to, to correct it; but at law, the construction claimed cannot be admitted. And if it is not properly shewn, that the Calhoun deed is referred to, the other evidence cannot be material or relevant.
2. As to the evidence offered that the highways were open and notorious, and that the plaintiff knew of the incumbrances on the land. It has not been questioned at the bar, but that a highway was an “ incumbrance,” within the meaning of the covenants. Although this has been doubted, by a highly respectable judge in the state of New- York, in the case of Whitbeck v. Cooke & ux. 15 Johns. Rep. 483. it is certain, that the right of the public to an easement over the land', is utterly inconsistent with that exclusive dominion, which the tenant in fee claims and exercises in ordinary circumstances. It is true, that the advantages derived from the highway may be more than equivalent to the loss sustained thereby ; yet so long as others have a right of enjoyment, which the owner of the soil can neither prohibit nor controul, it seems clear, that there is subsisting a legal incumbrance ; and so it was ruled, by the supreme court of Massachusetts, in the case of Kellogg v. Ingersoll, 2 Mass. Rep. 97.
The question, however, submitted to us, is, whether evidence is admissible to show, that the plaintiff, when he took this deed, knew of the existence of these roads. If the existence of the roads is not a breach of warrantry, then the proof is wholly immaterial ; if it is, then the proof is improper. For if the highways are incumbrances, and that known to the plaintiff, yet if the defendants were willing to warrant against them, that warranty must be obligatory, unless there is something in the war[432]*432ranty itself connected with the plaintiff’s knowledge, which renders it void.
How can the plaintiff’s knowledge destroy the effect of the defendants’ covenants ? Suppose the defendants had sold a farm, which they and the purchaser both knew they did not own ; could that knowledge destroy or affect the nature of the covenant of seisin ? If not, by what rule can such knowledge any more impair a covenant of warranty against incum-brances ?
If it be said, that warranties in personal contracts do not extend to visible or known defects, that will apply to one of these covenants as well as the other. But it is believed, that it has never been held to affect contracts of this kind under hand and seal. Ch. J. Spencer, in the case of Whitbeck v. Cook & ux.
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Williams, Ch. J.
1. As to the evidence offered. It cannot seriously be contended, in the absence of testimony on the part of the defendants, but that the description in the defendants’ deed, as connected with the proof of the plaintiff, would include the lot No. 5. ; nor is there much doubt a to its extending to Frink’s line on the West, so as to include lot No. 6., as far North as the Bingham farm. But the defendants claim, that their deed, after describing the several tracts conveyed, refers to the deeds of their grantor, and thus makes them proper evidence, and in that connection, the parol testimony is proper ; and if the deed of Calhoun, their grantor, is so referred to, as to make part of their deed, this inference would seem to be just; for as Calhoun’s deed speaks of his farm in the occupation of Lemon, what composed that farm and what was occupied by Lemon, would seem to be proper subjects of enquiry. The question then arises, does the defendants’ deed, by fair intendment, refer to their deed from John T. Calhoun ?
The deed first describes the two hundred acres about which the controversy arises, and gives the bounds. It then describes the fifty acre lot, bounded South on Nathaniel Church’s land, [430]*430East on highway, North on Hamlin's heirs, West on Daniel Brewster's land; “ reference to their deeds to be had for a more particular description.” Now, what deeds are meant and intended l For when another instrument is referred to, to controul this, it must be referred to in such a manner as to leave no reasonable doubt what instrument was intended. Reference to their deeds ! Was it the deed of John T. Calhoun of the two hundred acres, or the deed of the fifty acres 1 If either of these were intended, it would be very remarkable; because neither the name of John T. Calhoun, nor of the grantor of the fifty acres, appears at all in the deed; nor are we as yet informed who was the grantor of the fifty acres. There is, then, nothing that can be laid hold of, to connect the reference of their deeds with the defendants’ grantor. Indeed, it does not appear from the instrument, that the defendants derived their title to the land in controversy, by a deed from any one. They might have derived it, by descent, or by levy of execution ; unless the reference is to prove the nature of their title, as well as the extent of it. To make this clause in the deed prove, in the first place, that they derived title by deed, and from John T. Calhoun, and that was the deed, or one of the deeds, referred to, would be going very far indeed; more especially, when the grammatical construction is plain : which is a reference to the persons last before spoken of, who have title by deed. As the adjoining proprietors may have deeds, as well as the grantors, the one may be referred to as well as the other; and although it might not be as common, yet it is quite as usual as to refer to deeds of persons not named or described. It is true, indeed, that the grammatical construction must yield, if the intention be plain; but the difficulty here is, the sense is not plain. If we desert the grammatical construction, we are only involved in conjecture.
It is further claimed, that the description in the defendants’ deed to the plaintiff, follows that of Calhoun to them. But before we can look at this deed at all, we are to determine from the defendants’ deed itself, whether we can look at Calhoun's deed for explanation ; and we are not first to look at it, to see if it will give the explanation. The fact that it will prove the proposition to be established, will not prove that it is admissible for that purpose.
It is also said, that the word “ their” in connection with the [431]*431words “ more particular description,” show, that it must mean of the premises conveyed. Now, when a full and apparently perfect description of the land conveyed had been given in the deed itself; when no allusion whatever had been made to the grantors claimed; and those grantors had not even been named; and when the ambiguity is bf their own creating, it is too much to presume, in the first place, that they derived title by deed to the lands conveyed, and that a general reference of this sort must be intended to apply to the deeds to them, in order to correct the errors, or supply the deficiency of the deed in question. If, as is probable, there has been a mis-description, let the proper forum be resorted to, to correct it; but at law, the construction claimed cannot be admitted. And if it is not properly shewn, that the Calhoun deed is referred to, the other evidence cannot be material or relevant.
2. As to the evidence offered that the highways were open and notorious, and that the plaintiff knew of the incumbrances on the land. It has not been questioned at the bar, but that a highway was an “ incumbrance,” within the meaning of the covenants. Although this has been doubted, by a highly respectable judge in the state of New- York, in the case of Whitbeck v. Cooke & ux. 15 Johns. Rep. 483. it is certain, that the right of the public to an easement over the land', is utterly inconsistent with that exclusive dominion, which the tenant in fee claims and exercises in ordinary circumstances. It is true, that the advantages derived from the highway may be more than equivalent to the loss sustained thereby ; yet so long as others have a right of enjoyment, which the owner of the soil can neither prohibit nor controul, it seems clear, that there is subsisting a legal incumbrance ; and so it was ruled, by the supreme court of Massachusetts, in the case of Kellogg v. Ingersoll, 2 Mass. Rep. 97.
The question, however, submitted to us, is, whether evidence is admissible to show, that the plaintiff, when he took this deed, knew of the existence of these roads. If the existence of the roads is not a breach of warrantry, then the proof is wholly immaterial ; if it is, then the proof is improper. For if the highways are incumbrances, and that known to the plaintiff, yet if the defendants were willing to warrant against them, that warranty must be obligatory, unless there is something in the war[432]*432ranty itself connected with the plaintiff’s knowledge, which renders it void.
How can the plaintiff’s knowledge destroy the effect of the defendants’ covenants ? Suppose the defendants had sold a farm, which they and the purchaser both knew they did not own ; could that knowledge destroy or affect the nature of the covenant of seisin ? If not, by what rule can such knowledge any more impair a covenant of warranty against incum-brances ?
If it be said, that warranties in personal contracts do not extend to visible or known defects, that will apply to one of these covenants as well as the other. But it is believed, that it has never been held to affect contracts of this kind under hand and seal. Ch. J. Spencer, in the case of Whitbeck v. Cook & ux. before referred to, says: “ It must strike the mind with surprise, that a person who purchases a farm through which a public road runs, at the time of purchase, and had so run long before, who must be presumed to have known of the existence of the road, and who chooses to have it included in his purchase, shall turn round on his grantor, and complain that the general covenants in the deed have been broken, by the existence of what he saw when he purchased, and what must have enhanced the value of the farm.” 15 Johns. Rep. 491. Upon the principle on which this judge proceeds, the evidence would be unnecessary, because he presumes knowledge in the grantee. He also presumes that the value of the farm will be enhanced, by the road. This may be so, or it may not be so. If it is, very little damages could be recovered ; if it is not, no weight is added to the argument from the fact that cases may arise where it may be so. ( But if this course in the grantee might excite surprise, will it not excite more surprise that the grantor should convey these lands, with the knowledge he must have of these incumbrances, without making an exception of them, unless he was willing to sustain the damages that might arise from them ? When it is recollected, that this ' is the deed of the grantor, and these his covenants, it seems j more correct to say, that he must abide by them, than to per-~N mit him to unnerve or destroy them, by proof of this kind, which is only calculated to induce a belief that the party grantor could not have intended what he has actually covenanted for.
[433]*433The court are, therefore, of opinion, that the evidence is not admissible.
3. The next question arises from the fact, that the land was immediately reconveyed, by the plaintiff, to the defendants, to secure the purchase money, with similar warranties; and that more than half the purchase money remains unpaid, with interest. And the defendants rest their defence on the assignments of the covenants under the second deed; or that the covenants in the second deed create an estoppel; or that they are a bar to prevent a circuity of action.
As to the first ground, this court have decided, that covenants against incumbrances, and that the grantor is the owner of the land, are personal covenants, which do not run with the land ; and, of course, cannot be assigned. Mitchell v. Hazen, 4 Conn. Rep. 495. Mitchell v. Warner, 5 Conn. Rep. 497. Davis v. Lyman & al. 6 Conn. Rep. 249.
When this purchase was made and the deed delivered, if the defendants were not owners of the land, or any part of it, or if the covenants against incumbrances were broken, a breach existed, and a right of action instantaneously arose, which was not assignable, as it did not run with the land. Mitchell v. Warner, 5 Conn. Rep. 497.
It is also claimed, that the covenants in the second deed constitute an estoppel to the plaintiff’s claim on the first. Estop-pels are not to be favoured ; indeed, it is said, they are odious. A technical accuracy is required, which is not liable to the most subtle and scrupulous objection. Smith v. Sherwood, 4 Conn. Rep. 281. They must be certain to every intent, and not be taken by argument or inference. Co. Litt. 352.
Try this case by these rules. Norton and Stocking sell to the plaintiff a piece of land, and agree to warrant the title. They take a mortgage of the same grounds, with like covenants, to secure the purchase money. And it is now claimed, that the last covenants preclude or estop the plaintiff from a right of action on the others, because it is said they are simultaneous. Unless all principles of common sense are discarded, we must suppose, that the deed of the defendants conveying the land, in fact preceded that of the plaintiff, which was given to secure the consideration money for the land so conveyed. There must, then, have been a seisin in the plaintiff, under and by virtue of the defendants’ deed to him. It was decided, [434]*434by this court, in the case of Barkhampsted v. Farmington, 2 Conn. Rep. 600. that such a seisin was sufficient to confer a settlement, although the land was immediately reconveyed to secure the debt; and the cases cited from New- York and Massachusetts, so far from shaking that case, rather confirm it. Those were cases where the wife claimed dower ; and the courts in both states admit, that the deed of conveyance gave an immediate seisin to the husband ; but as the estate was re-conveyed immediately as security, by way of mortgage, they also held the wife not entitled to dower, not because there was no seisin, but because the seisin was instantaneous ; and that it was settled law, that such an instantaneous seisin in the husband was not sufficient to give a right of dower to the wife. Holbrook v. Finney, 4 Mass. Rep. 566. Stow v. Tiff, 15 Johns. Rep. 458. 462.
If, then, we must consider the plaintiff’s deed as subsequent to that of the defendants, it can be no estoppel, because a warranty of title by the plaintiff, in a subsequent deed, will not prove that the defendants had title when they conveyed to the plaintiff: for the plaintiff, might, at that time, or immediately after, have purchased in another title, or removed the incum-brance. The contrary is not so clearly implied as to become one of those presumptions of law, which cannot be rebutted. To create that legal certainty requisite to constitute an estop-pel, the defendants must show', that the plaintiff could have no other title than that acquired by deed of the defendants. It may be improbable, but surely is not impossible. The fact that the plaintiff had a title when he reconveyed it to the defendants, is consistent with the fact that the defendants had not a perfect title when they conveyed to the plaintiff: of course, there can no estoppel.
It is said, that estoppels must be reciprocal. As it respects leases or indentures of every kind, or verdicts, this may be true generally ; but does this principle apply to deeds poll ? In such a deed, the grantor covenants, that he has title, and is estopped to deny it. Is the grantee also estopped ? If he is, the whole effect of the covenant is lost, and it becomes a perfect nullity. Lord Coke says, “ if the lease be made by deed indented, then are both parties included, but if it be by deed poll, the lessee is not estopped to say, that the lessor had nothing at the time of the lease made.” Co. Litt. 47. b. Plowd. Com. 434.
[435]*435Again, it is said, these facts form a good defence, because the law abhors a circuity of action ; and if the plaintiff can recover of the defendants, they can also lecover of the plaintiff. This objection presupposes what is not admitted, that the plaintiff had not procured a title, when his deed was given, or since that time. If the plaintiff had proved such a deed, when he gave his, then the defendants could not recover any thing upon their covenants in the mortgage deed. If they havi since gained such title, and removed such incumbrance, thei; only nominal damages can be recovered ; and unless the conn can see, that the same damages must be recovered, by the on* party as by the other, the suit will not be barred for fear it will produce another. Cuyler v. Cuyler, 2 Johns. Rep. 186.
In support of these several objections of the defendants, it was said, that these deeds, being given at one and the same time, and for one object, are to be considered as if they were one instrument. It is true, that to give effect to the intention of parties, such a construction has been given. So, too, where there is but one instrument, the law will adjudge priority of operation, although it be sealed at one and the same instant. Digges’s case, 1 Co. 174. Res. 6. But in this case, the construction contended for, by the defendants, would rather tend to defeat than to carry into effect the intention of the parties.
The view taken of this case makes it unnecessary to consider how far the fact that the deed of the plaintiff to the defendants is a mortgage, ought to affect this defence. Aside from that objection, this defence cannot be sustained.
4. The only remaining question is, as to the damages. On this subject, so far as it respects the highways, the jury are to estimate the actual injury to the party. If they are, as they are claimed to be, a benefit to the farm, then only nominal damages will be given ; if otherwise, a fair compensation is to be made for the injury sustained.
As to that part of the farm to which the defendants had no title, the damages are to be assessed according to the value of that part of the farm to which they had no title, compared with the consideration paid for the whole, and interest thereon. Morris v. Phelps, 5 Johns. Rep. 49. 56.
The superior court are to be advised, that the evidence offered by the defendants is not admissible; that the plaintiff [436]*436is entitled to recover ; and that the damages are to be assessed upon the principle stated above.
In this opinion, the other Judges concurred, except Church, J., who gave no opinion, having been of counsel in the cause.
Judgment to be given for plaintiff.