Calvin Boynton, Administrator, versus William Dalrymple, 16 Pick. 147

Shaw C. J. delivered the opinion of the Court. The decision of this question depends upon the construction of the bond declared on. This replication does not state, that the plaintiff has been disturbed in his possession or title, or that any claim of right has been made by Woods and wife or any other person ; we are therefore to understand, that the plaintiff has been in the undisturbed occupation and enjoyment of the estate, from the time of the execution of the defendant’s deed to the present time.

The question then is, does the replication setting out a mere naked outstanding right of such long continuance, show a breach of the condition of the defendant’s bond ? We are to bear in mind, that this bond was not coeval with the deed from the defendant to the plaintiff’s intestate ; it was not one of the original assurances of title given upon the con veyance, but a bond with surety made some years afterwards, and upon a recital that certain persons have, or pretend to have, some claims thereon.

Another obvious remark is, that it does not recite any particular claim, but refers to all claims, and the condition is to secure the obligee against all claims. Further, all the stipulations in this condition look to the future, and if there had been, before the date of this deed, any breach of the defendant’s covenants in his deed, it could not amount to a breach of the condition of this bond.

Now whether we regard the general object and purpose of this obligation, or its particular terms and stipulations, we are of opinion, that it constitutes a contract of indemnity, a guarantee against disturbance and interruption ; and that so long as there is no disturbance or interruption, either of the possession or title, by suit or claim, the mere existence of an outstanding unasserted right, does not amount to a breach of the condition of this bond. .

The argument of the plaintiff is, that the obligation is to quiet and extinguish all lawful claims and rights, and procure a release of such claims and rights, and therefore that the obligor was to be active, and procure such release, whether any adverse title was set up or not, or whether so required by the obligee or not.

If those words stood alone, there would be some ground for this argument; but they are followed by this further clause; “so that he, the said Nutting &c., shall not be at any time hereafter molested or disturbed in the possession of said lands, or be sued, ejected, or turned out of the possession thereof.” This clause qualifies the former, and the legal effect of the undertaking is, so to quiet, extinguish, and guard against all adverse rights and claims, as that the obligee shall not be sued, molested, or damnified.

If therefore the obligor could obtain a practical relinquishment of such adverse claim, though by a covenant not to claim, which could not be pleaded as a technical release, or by an informal release, or otherwise, provided it was effectual and accomplished its object in securing to the obligee the undisturbed title and possession, he saved the condition of his bond, and had a right to avail himself of the lapse of time to work a complete confirmation of the legal title to the obligee.

It was argued on the part of the plaintiff, that by the demurrer, the defendant admits the existence of the outstanding right, and shows a defect in the title of the intestate, for which the plaintiff ought to have a remedy on this bond. This is not strictly a correct view of the effect of the demurrer ; the defendant in effect says, that though there is such an outstanding right, yet I am not called upon to go into a trial of that question with you in the present action. He could only demur, or traverse the right pleaded.

Had he done the latter, the parties must have gone to trial upon the question of Woods’s right; the issue would have required the plaintiff to disprove and annul the title of his intestate, and the defendant, to establish it, and yet the judgment could have no effect upon the right of the party having the outstanding claim. And after all, if we are right in the construction of the instrument, such an issue would have been immaterial. Plea in bar good, and judgment thereon for the defendant.