Allen v. Caffee, 85 Miss. 766

Allen v. Caffee

85 Miss. 766 | Miss. | 1904

Whitfield, C. J.,

delivered the o|Dinion of the court.

The chief question here for solution is whether the word “warrant,” in Code 1892, § 2480, embraces a covenant of seizin. Section 2479 provides: “A conveyance of land may be in the following form, and shall be as effectual to transfer • all the right, title, claim, and possession of the person making it as can be done by any sort of conveyance.” This section must be construed in connection with sec. 2480, and, so construed, we think the word “warrant” warrants the possession or seizin as well as the title. Undoubtedly this was the purpose of the legislature. The object was to make some short form of conveyance which should embrace all the covenants known in common-law conveyancing. In 8 Am. & *Eng. Ency. Law (2d ed.), pp. 100, 101, it is said: “The statutes of some of the states have prescribed a short form of warranty, which has been decided to contain in itself the five other covenants, including the covenant of seizin. So whatever would' constitute a breach ,of any one of the five covenants will give an action on the statutory covenant of warranty. As eviction is not necessary to a 'breach of the covenant of seizin, there may be a recovery on this statutory covenant before there has been an eviction.-” See, also, same authority, p. 88 and other pages cited in brief of counsel for appellee. See particularly pp. 56 and 57. Whilst the statutes in some-of the states on which *771the decisions referred to in this text are based are not identical, ipsissimis verbis, with our statute, some of them are substantially so, and we think it is clear that the same construction should be given our statute which has been given to some of those statutes most like our own. The manifest purpose of the lawmakers was to shorten the form of conveyancing and to use one word, “warrant,” and to make that one word cover all five of the covenants usual in conveyances at common law — to wit, seizin, power to sell and convey, freedom from incumbrances, quiet enjoyment, and title. We have no livery of seizin now —a written deed takes the place of livery of seizin — and we think it more in harmony with the purpose of the legislature to construe secs. 2480 and 2479 as warranting seizin- as well as title. If we had nothing but sec. 2480 to construe, counsel for appellant - would be right on our statute, but sec. 2479 is necessarily to be construed together with sec. 2480, both directly relating to the same subject-matter; and we rest the ease on the construction of the two, taken together. We conclude this opinion with a quotation from Funk v. Creswell, 5 Iowa, 68, which expresses our view of this subject: “There has been an evident disposition to encourage and promote greater simplicity in the forms of conveyances, not less in modern legislation than in the later judicial decisions. In England a system has grown into favor unknown to the common law. In the United States the covenant for further assurance, in favor in England, has gone into disuse; while the covenant of general warranty, unknown to English conveyancing, may be said to have been universally adopted as the main assurance of a perfect title. The legislature has provided in the code (sec. 1232) suitable forms for conveyances, in apt words — short, simple, and intelligible— free from the verbiage and formalities of the old system, but retaining all that was valuable or essential in meaning or substance. Erom these the fprm Tor a deed in fee, with warranty,5 has been .adopted by the present parties, with the covenant of warranty in the language of the statute. The form *772is not prescribed to be used by those who do not choose or prefer it; nor, having adopted it, are parties precluded from inserting other covenants of warranty, or from restraining, in express terms, those adopted, as they may desire. All that is claimed for it is that it shall have the very effect and meaning designed and understood by the parties and contemplated by the legislature — viz., to include and imply all the usual covenants in a deed of conveyance in fee simple.”

Affirmed.