
    Jones and others v. Steam Stone Cutter Co.
    
      (Circuit Court, D. Vermont.
    
    May 29, 1884.)
    VENDOR and Vendee — ifottoe oe Inctjmtrance — Improvements—Rev. Laws Vt. * 126.
    Oí' 3 who takes a deed i'or an incumbered piece of property, knowing it to be so, ii the faith that liis grantor will relievo it of the incumbrance, does so at his ] erii, and he cannot, by the la ws of Vermont, recover of his ejector (30111-pens lion for the improvements he has made upon it.
    At L IW.
    
      Will am Batchelder, for plaintiffs.
    
      Alda ;e F. Walker, for defondant.
   Whi bleb, J.

This is a declaration for betterments, filed according to he statutes of the state, after judgment in ejectment, in favor of this defendant, against the plaintiffs at the last term. Eev. Laws, Vt. § 1361. The issue has been heard by the court, upon the waiver of a ju .7, and involves the right to maintain the declaration which is the eh ef matter in controversy. The right to maintain the action depeni s wholly upon the statutes of the state. Griswold v. Bragg, 18 Blatchf. 202. These statutes give the right to the defendant in ejeetn ent, against whom a recovery has been had, to recover of tlie plaint ff the value of improvements made by the defendant, or those under whom he claims, upon the land, if he has or they have purchase* the lands, “supposing the title to be good in fee.” Rev. Laws Vt. § 1260. These plaintiffs purchased the lands of the Windsor Mann 'aoturing Company. They were subject to a lien in the nature of an attachment, held by this court to be valid, and upon which the n covery-in ejectment has been had. Steam Stone Cutter Co. v. Sears, 20 Blatchf. 23; S. C. 9 Fed. Rep. 8; Steam Stone Cutter Co. v, Jones, 13 Fed. Rep. 567. These plaintiffs know, at the time of th ir purchase, of this attachment. It was mentioned as an in-cumb '’anee, and covenanted against, in their deed. They testify that they supposed the Windsor Manufacturing Company would make the title : ;ood, and do not testify that they supposed the attachment was inval d. It seems quite clear upon the evidence that they relied upon the covenant of their grantor, and the ability of the grantor to re ieve the property from the attachment, either by defeating the suit n which the attachment was made, or by satisfying the judgment , if one should be recovered, rather than the title of their grantor as a; ;ainst the attachment. They purchased supposing the title to be si bject to the attachment, instead of supposing it to be good in fee, ,ts the statute requires to entitle them to maintain this claim. Thej do not lose the land by the failure of a title which they suppose l to be good, but by the failure of the Windsor Manufacturing Company to keep good a title which they knew was liable to turn out to be bad. This is a rule of property to be governed by the laws of tbe state, but tbe decisions of tbe courts of tbe state most favorable to, and most relied upon to support, tbe claims of these plaintiffs, only give countenance to recoveries for betterments made under a title supposed to be good in itself. Brown v. Storm, 4 Vt. 37; Whitney v. Richardson, 31 Vt. 300. Tbe faitb which these statutes vindicate must rest upon tbe title, and its inherent strength to withstand attack, and not upon covenants or other undertakings to maintain. The result is there must be judgment for this defendant upon this declaration. These plaintiffs will have left to them, apparently, all the remedies which they supposed they had against the Windsor Manufacturing Company. If those remedies fail of substantial result for want of pecuniary responsibility of that company, these plaintiffs, and not these defendants, trusted to that responsibility in this respect, and it is more just that they should stand the loss.

Judgment for defendant on declaration for betterments, with costs.

•See Griswold v. Bragg, 6 Fed. Rep. 342.  