Holbrook vs. Holbrook & Trustee, 11 Me. 361

Mullen C. J. On the 9th of June, 1827, Samuel Holbroolc, the plaintiff, gave a bond to Saul Holbroolc, conditioned to give him a good and sufficient deed of a certain parcel of land, on or before the -1st of March, 1828, on payment by him to the plaintiff of the sum of $135. On the 29th of April, 1828, a deed of said land was made, bearing the above date, by the plaintiffj conveying the same to said Preston, one of the defendants, but it was never delivered till June 9th, 1823: at which time also the contract declared on was executed, though that also bears the date of April 29th, 1828.

By this contract the defendants agreed to indemnify and secure the plaintiff harmless from all claim., right and title which said Saul then had in the premises. What is the true construction of this contract ? By the terms of it, both defendants must be considered as knowing of the existence of the abovementioned bond, and that the condition of it had been violated.

They must have considered Saul as having some claim, right or title in the land, whatever might have been the fact, on strictly legal principles ; and it would seem that the indemnity intended, was against the consequences of his assertion of his claim and right. It is true, that on the 9th of June, 1828, Saul had no legal title to the land, but he had to damages for the breach of the condition, equal to the value of the land.

For what purpose could the defendants’ contract have been made, but to save the plaintiff harmless from the payment of those damages which Saul has since recovered and the plaintiff has paid ? Is the defendant, Preston, to avoid his contract, and his surety also, by explaining away all its meaning ? Mr. Preston, as a lawyer, must have known that Saul Holbrook, in virtue of Samuel Hol-brook’s bond, had not acquired any legal title in and to the land, though he had what was probably considered by all concerned as an equivalent.

For some reason, Preston was desirous of obtaining a legal title to the land, and for the sake of succeeding, he and his surety agree to stand between the plaintiff and all harm and damage, in consequence of the bond he had given to Saul. This is the common-sense understanding of the transaction, and in evident accordance with the truth and justice of the case.

In this view of the cause we think the instruction of the Judge was correct, with respect to the plaintiff’s right to recover the amount which the jury allowed on account of the sum which he had paid for the non-conveyance of the land in question to Saul, in satisfaction of the judgment he recovered. The subject of the barn, and the instruction of the Judge as to the plaintiff’s right to recover its value, next claim our consideration. The bill of sale bears date June 21, 1826.

In virtue of this, Saul Holbrook immediately became owner of the barn, and the bam immediately became personal property, in the same manner as though he had built it at his own expense upon the land, by the consent of the plaintiff; and therefore, according to our decision in the case of Russell v. Richards & al. 1 Fairf. 429, it did not pass by the plaintiff’s deed to Preston. He should have defended the action which Saul brought against him, and prevented his recovering back the price which be paid for it: but instead of doing this, he consented to the claim and was defaulted.

His surrender to that claim, furnishes no foundation 'for a claim against the defendants. Besides, the agreement of the defendants, declared on, has no reference to the sale of the barn, which was made two years before; but exclusively relates to the claim, title and interest of Saul in the real estate or premises in question. The case before us, furnishes no proof of any promise of indemnity or reimbursement on account of the barn or its value. We are therefore of opinion, that the instruction as to this portion of the plaintiff’s claim cannot be approved.

The consequence is, that the verdict must be set aside and a new trial granted, unless the plaintiff will release on record, so much of the amount of the verdict as is composed of the sum allowed by the jury, on account of the judgment rendered against the plaintiff for $50,16 damage, and $7,00, costs. Should such sum be so released, judgment is to be entered on the verdict for the residue.