Allen v. Little

36 Me. 170 | Me. | 1853

Howard, J. —

General covenants of warranty, in a deed of lands, are prospective, and run with, the estate; and consequently, vest in assignees and descend to heirs. But covenants of seizin, and those against incumbrances, are personal covenants in preesenti, which do not run with the land, and are not assignable by the general law. Yet, by the statute law of this State, they pass to the assignee of the grantee, and he may maintain an action for their breach, in his own name, against the grantor, provided he will release the grantee from his covenants. Stat. of 1835, c. 183; R. S. c. 115, § § 16, 17 ; Prescott v. Hobbs, 30 Maine, 345 ; Stowell v. Bennett, 34 Maine, 422.

Tenants in common may join in actions on contracts relating to the estate; but when there has been a severance of the estate, and the legal interest is several, each must sue separately for his damages for breach of the covenants which run with the estate. By operation of the statutes referred to, the covenants of seizin, and freedom from incumbrance, run with the land, and are available to separate assignees in severalty, pro tanto. For all covenants which run with the land are, in legal effect, several, although in terms, they are joint only. Co. Lit. 385, a; Sheppard’s Touchstone, 198, 199; Rawle on Covenants for Title, 303 ; White v. Whitney, 3 Met. 87; 1 Chitty’s Pl. 6.

The covenants in the deed of the testator were made to the plaintiffs and Rackley, deceased. Brown, one of the plaintiffs, conveyed his interest in the land, “ by a warranty deed,” more than ten years before the commencement of this action. As by the laws of this State, all the-covenants concerning title run with the land, he, as an intermediate covenantee, cannot maintain an action against a prior covenantor, until he has suffered damage. If there has been a breach of the covenants, his assignee may maintain an action against the first covenantor, to recover damages, but that gives no right of action to any intermediate covenantee, unless he is damnified. Rawle on Covenants for Title, 304; Booth v. Starr, 1 Conn. 244; Withy v. Mumford, 5 Cowen, 137 ; Fairbrother v. Griffin, 10 Maine, 96; Wheeler v. Sohier, 3 Cush. 219.

There is no evidence that Brown has suffered any damage by reason of the alleged breach of covenants, jointly with the other plaintiff, or separately, and he, at least, has no cause of action.

It follows, that this suit, in the name of Allen and Brown, cannot be maintained, even if the former has a right of action. But as the case is presented here, we can only sustain the motion and the exceptions.

Shepley, C. J., and Hathaway and Appleton, J. J., concurred.