25 Minn. 525 | Minn. | 1879
Action on a covenant of warranty in a deed of real estate, executed by defendant and one Goldsmith to Coffin, whose administrator is the plaintiff. The deed was executed in 1858. At that time and ever since, the title to the lands was in one Greve, who, in 1869, brought two actions in ejectment for the lands against Coffin, in one of which final judgment was rendered in December of that year, in favor of Greve, for the recovery of the possession of a part of the real estate; and in 1876, final judgment was rendered in the other, in favor of Greve, for the possession of the remainder. The lands were all the time vacant, neither Greve nor Coffin having ever been in possession. Immediately after the determination of the first action, and after the commencement of the other, Coffin notified Greve that he made no further claim to the premises, and would not defend the second action. This action was commenced in proper time, if the breach happened at the time of this notice. The court below decided that the_right of action was barred by the statute of limitations.
On the facts two questions arise: First. Was there, as is claimed by defendant, and seems to have been held by the court below, a breach of the covenant at the moment of the execution of the deed ? Second. Did a breach occur, as plaintiff claims, when Coffin, after final judgment against him in the first action, notified Greve that he made no further claim to the premises ?
With the first question we have but little difficulty. The covenant of warranty relates to the future, and not, as does the covenant of seizin or against encumbrances, to the present existing condition of things. Its obligation is to defend the title granted, against any who shall lawfully claim the
Treating of the covenantee’s right to yield possession with•out contest to the superior title, the court, in Moore v. Vail, 17 Ill. 185, say, (p. 190,) “This, however, is not to be understood as holding that the mere existence of a paramount title -constitutes a breach of the covenant, or that it will authorize the covenantee to refuse to take possession when it is quietly tendered to him, or when he can do so peaceably, and then claim that by reason of such paramount title, and his want of possession, the covenant is broken; nor will it justify him in abandoning that possession, without demand or claim by
The second question is, in view of the authorities, more-difficult. There was no actual eviction in 1869. There-could not be, for there was no actual possession from which the covenantee could be actually evicted. It seems to have-been held at one time, that to constitute a breach of the covenant of warranty, an actual putting out of possession was. necessary, some cases going so far as to hold that it must be-under a judgment. Hamilton v. Cutts, 4 Mass. 349; Webb v. Alexander, 7 Wend. 281; Kerr v. Shaw, 13 John. 236. But there were so very many cases in which, a covenantee’s right would be as effectually determined, and his enjoyment of the-estate granted as effectually prevented, by other means, as-through a judgment actually enforced, or an actual putting out of possession, that the doctrine of constructive eviction grew up. Although the name eviction is still used to characterize the fact or facts which are allowed to constitute a breach of the covenant, an eviction in fact is no longer necessary. The ingenuity with which courts have sometimes, reasoned to connect the idea of eviction with facts constituting a failure of the covenantor to keep the title and the rights, belonging to it in the covenantee, is suggestive of the conservatism with which the judicial mind clings to established rules. For instance, in Grist v. Hodges, 3 Dev. (Law,) 198, where the land was in actual possession under the adverse-
Now, without exercising our ingenuity to construe a man to be in possession when he is not so in fact, and construe him to be put out when in fact he is not and cannot be put out, we express the rule which we gather, from the cases in this way. If, at the date of the covenant, there is a superior title in a third person, whenever that title is actually asserted against the covenantee, and the premises;,feraimed undédit, and the covenantee is obliged to yield and'does yield his claim to such superior title, the covenant to warrant and defend is broken. To such circumstances, we may, for the sake of convenience, apply the term eviction.
How was it in this case ? The true owner brought an action in ejectment against the covenantee, to test the title. This was an assertion of his title and claim made under it, against the title of the covenantee. As' the lands were vacant and not in the actual possession of the covenantee, he might have prevented a trial of the title in that form of action. But we do-not think that good faith towards the covenantor required him to avoid the issue upon the title thus presented. On the con
We think there was, in consequence of these judgments, a breach of the covenant. The expenses reasonably incurred and paid by the covenantee in defending the title are recoverable as part of the damages.
The judgment below is reversed, and judgment ordered for plaintiff as claimed in the complaint.