2 Mass. 97

September, 1806


A public town-way over land conveyed is an encumbrance within the meaning of a covenant that the premises are free of all encumbrances. [Where the plaintiff, in his declaration, assigned the existence of such a town-way as a breach of such a covenant, and the defendant did not confess and avoid the breach, or traverse it, but merely pleaded that the premises were free of all encumbrances at the time, &c., and concluded to the country, -- held, on special demurrer that the plea was bad.]

This was an action of covenant broken, brought on a deed of bargain and sale, in which it was, amongst other things, covenanted by Ingersoll that the premises conveyed were free of all encumbrances; "and the plaintiff in fact says that, at the time of making said deed, the premises were not free of all encumbrances, because he says that for a long time before the making of said deed there had been, then was, and ever since hath been, a public town-road, or way, duly laid out by the said town of A, for the use of all the inhabitants of the said

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town," (and describes the way,) "which said road, at the time when, &c., passed in, through, and over, the said tract of land, and contains two acres and a half, part of the premises conveyed." The defendant pleads, 1st., the general issue non est factum, which is joined; and 2d., actio non, &c., because he says that, at the time of making and executing the deed aforesaid, alleged in the plaintiff's declaration, the same one hundred acres described in said deed were free of all encumbrances, and thereof he puts himself on the country.

To this plea the plaintiff demurs specially, and for causes of demurrer shows the following, viz.: That the defendant has neither confessed nor denied the existence of said road; that the plea concludes to the country when it ought to conclude with a verification; that it offers to put in issue to the jury matter of law not proper for their cognizance; and that it is an insufficient answer, &c.

Dewey, for the plaintiff, observed that the defendant's plea amounted to a confession of the existence of the road, and he considered the case as too plain to afford room for argument.

Bidwell, for the defendant. The first cause of demurrer is that the way alleged in the declaration is neither traversed nor confessed and avoided by the plea; but it will be observed that the only covenant of which any breach is alleged in the declaration is that the land was free of all encumbrances, and under this breach, thus generally assigned, a particular encumbrance is specified. The object of this specification is to give notice to the defendant of the encumbrance intended to be given in evidence. The plea alleges, in the terms of the covenant, and in direct contradiction of the assignment of the breach, that the land was free from all encumbrances, which puts in issue the encumbrance specified in the declaration, including every matter of law or fact constituting such encumbrance, which is also an answer to the third cause of demurrer, viz.: that the plea puts in issue matter of law.

As to the second cause of demurrer, viz., that the plea concludes to the country, the settled rule of pleading is, that where the main fact in a declaration or plea is traversed, as in this

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case, the plea or replication may conclude to the country. On these grounds the plea is good, and the demurrer admits the facts alleged in it, that the land was free from all encumbrances.

But even if the plea is bad in itself, it is nevertheless a sufficient answer to an insufficient declaration, as this is, because such a public highway as is here alleged is not an encumbrance within the intent of the covenant. It appears, by the plaintiff's own showing, to have been a public town-way before and at the time of making the deed. It must therefore have been known to the parties, and the terms of their contract were of course adapted to it. Such a public highway is beneficial rather than prejudicial.

But an encumbrance is some lien or charge, existing in favor of another person, rendering the land of less value to its owner. It must be a private lien, and not a public right common to all citizens. [Note 1] "Covenant that land shall be discharged of encumbrances does not extend to such things as are of common right." By common right is intended such things as are of public use; and such is certainly a highway in this country.

An encumbrance must be something which lessens the value of the land. A navigable stream of water, on which all the citizens have a right to pass over the land, is not an encumbrance in the legal sense of the term; and the only distinction between such a stream and a public highway is, that one is created by the law of nature, and the other by the law of the government. If a public road be a benefit to the land adjoining it, it can in no sense be considered as an encumbrance; and by our plea in this case, the question whether this road is a benefit or an encumbrance was fairly put in issue.

Dewey, in reply. The rules of good pleading are intended to bring things, however complicated, to a single point. The defendant, by this general answer, has thrown the whole at large. He ought to have pleaded to the specific breach which the plaintiff has assigned. The real question, viz., whether this road

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is an encumbrance, is, however, brought before the Court. It is plain that the plaintiff is deprived of the use, the ownership, or dominion, of so much of the land which he purchased and paid for as is occupied by this road.

Suppose a part of this land had been previously conveyed to a third person for the purpose, and on the express condition, that a mill should be erected on it. A mill would, without doubt, have been a benefit to the plaintiff; but would this be a legal defence to an action brought against the defendant for his defect of title? If the defendant had previously leased the premises, reserving a high rent, would it have been any answer to our action that the rent was of more value to the purchaser than the occupation of the land, and therefore the previous lease was no encumbrance?

The position cited from Viner relates only to tenures, as things of common right, which are exempted by law, and is conceived to have no bearing on this question.

The opinion of the Court was afterwards delivered by

PARSONS, C. J. In this case, the count is in a plea of covenant broken, in which the plaintiff declares that the defendant, by his deed dated April 7th, 1787, sold him a tract of land in Alford, to hold in fee simple; and, among other covenants, covenanted with the plaintiff that the premises were free of all encumbrances. Of this covenant the plaintiff assigns the breach; and avers that before at the time, and ever since, the execution of that deed, there had been, then was, and ever since has been, a public town-road or way laid out over the premises by the town of Alford, for the use of the inhabitants, duly accepted and confirmed by the town, which road the plaintiff, in assigning the breach, particularly describes, averring that it contains two acres and eighty rods of the land sold, and concluding that so the defendant his covenant aforesaid hath not kept, but hath broken the same.

To this breach, thus assigned, the defendant pleads that the plaintiff ought not to maintain his action, because he says that when the deed was executed, the premises were free of all encumbrances, and concludes to the country.

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The plaintiff demurs to this plea especially, because the defendant has not traversed the existence of the road, nor confessed and avoided it, and because the plea does not conclude with an averment. And the defendant joins in demurrer. Whether the defendant's plea is, or is not, good, is the issue in law submitted to the decision of the Court. The defendant's counsel argued that his plea was substantially and formally good; and that, if it was not, the defendant was entitled to judgment, because, a public town-road being no encumbrance, the breach assigned was insufficient in law. As the plaintiff in this case has not assigned the breach merely in the words of the covenant, but has further specially described the encumbrance, the existence of which constitutes the breach of which he complains, -- if the breach thus assigned be sufficient in law, the defendant ought, in his plea, either to have confessed and avoided the assignment, or to have traversed the breach thus specially described. As he has done neither, it is the opinion of the Court that his plea is bad.

If the breach is not well assigned, the counsel for the defendant is certainly right in demanding judgment for his client, notwithstanding his plea is bad.

If the public town-road, described by the plaintiff in his assignment, is no legal encumbrance of the land sold, the breach is not well assigned. But the Court are well satisfied that the road, as there described, is an encumbrance of the land sold. It is legal obstruction to the purchaser to exercise that dominion over the land, to which the lawful owner is entitled. An encumbrance of this nature may be a great damage to the purchaser, or the damage may be very inconsiderable, or merely nominal. The amount of damages is a proper subject of consideration for the jury who may assess them, but it cannot affect the question whether a public town road is, in legal contemplation, an encumbrance of the land over which it is laid. Judgment must therefore be entered, that it appears to the Court that the defendant's plea is bad, and insufficient in the law, &c. [Note a]

Judgment for the plaintiff.


[Note 1] 14 Vin. Abr. 352, tit. Encumbrance, 4. 2 Rol. R. 287, Swinnerton vs. Butlar

[Note a] Bradley vs. Ousterholdt, 13 Johns. 404. It is in general sufficient for the plaintiff to assign a breach in the negative of the words of the covenant. -- Bradshaw's case, 9 Coke, 60. -- Glinister vs. Audley, T. Ray. 14. -- Gale vs. Read, 8 Eastn. 80. -- Wotton vs. Hale, 2 Saund. 180. -- Serg. Williams's note (10), and note to Browning vs. Wright, 2 Bos. & Pul. 14. -- Hancock vs. Field, Cro. Jac. 170. -- Muscot vs. Ballet, Cro. Jac. 369. -- Lancashire vs. Glover, 2 Show. 460. -- Doct. pl. 61. -- Touch. 170. -- Platt on Cov. 546, 308, 311. -- Jenk. Cent. Cas. 305, case 79.