186 Tenn. 393 | Tenn. | 1948
delivered the opinion of the Court.
In this suit the appellant, Amos, has sued the appellees, Carsons, for an alleged breach of warranty against encumbrances. It is alleged that a deed was made war
The appellees demurred to the bill setting forth nine separate grounds of demurrer. The Chancellor sustained the demurrer. An appeal was seasonably perfected and the cause has been ably briefed and argued here.
According to the allegations of the bill, which must be taken as true, a priority to construct a one family dwelling was issued to one Max Clopton on March 11, 1946. Under this priority the maximum sales price of the house was fixed at $9,500.00.
On August 24, 1946, Clopton conveyed the property to one Maddux for an undisclosed price but without notice of the above mentioned priority price.
On September 4, 1946, Maddux conveyed the property to the appellees at an undisclosed sales price and without notice of the priority price.
On October 5,1946, the appellees conveyed the property to the appellant at a sales price of $11,500.00. Neither party had notice of the priority price. Under the priority other restrictions, such as a maximum rental priority to veterans, was also in force. None of these restrictions were carried in the respective deeds and no notice is alleged in the parties subsequent to Clopton.
[Priorities Regulation 33 as amended was issued on June 14, 1946, (it is conceded a similar regulation was in force at and on the day the priority herein was issued on March 11, 1946). Apparently these regulations, in connection with veteran’s housing, were issued by the
Among the'pertinent provisions of this regulation, promulgated to carry out the Veterans Emergency Housing Program, is a proviso giving “Preference for Veterans of World War II and members of the Armed Forces” to purchase or rent house's built under these priorities; a proviso fixing “Maximum sales "prices and rents” and providing in part as follows:
“ (i) General. The restrictions on shies prices and rents contained in this paragraph (g) must be observed so long as this regulation remains in effect. . . '
The subsequent paragraph (g) (ii) provides that a builder must not sell for more than the maximum sales-price. The Section (g) (iii) provides:
“No other person shall sell a one-family dwelling built or converted under this regulation, including the land and all improvements for more than the maximum sales price specified in the application as ¿pprovéd, plus the amount of any normal and customary brokerage" fees or commissions, etc.
The regulation prescribes no violation of the civil rights between the parties and does not define any civil remedies therefor. The regulation does prescribe a criminal penalty for a wilful violation in words as follows: “Violations. Any person who wilfully, violates any provision of this regulation or who in connection with this regulation, wilfully conceals a material fact or furnishes false information to any .department or agency of the United States, is guilty of a crime, and upon conviction may be punished by fine or imprisonment. In addition, any such person may be prohibited from making or obtaining any further deliveries of, or from processing or using material under priority control, and may be . deprived of •priorities'assistance.”
On ,May 22, 1946, 60 Stat. 207, the Congress enacted statutory legislation affecting “Veterans Emergency Housing” which was carried in 50 U. S. C. A. Ap
Many of the provisions of the statute above referred to were repealed by Congress on June 30, 1947, 61 Stat. 193, including section i827(d) of 50 U. S. C. A. Appendix last above quoted, but in the repealing act it was provided that any priorities granted during the pendency of the act “shall remain in full force and effect”.
The defendants below, appellees here, expressly plead and relied on the above quoted 1827(d) of 50 U. S. C. A. Appendix as a twelve months statute of limitations barring any right the complainant might have. The suit herein was not brought within twelve months of the accrual of any right of action the complainant might have had.
Is the statute, above quoted, a limitation statute and is it applicable herein?
The statute was in force when the appellant purchased this property on October 5, 1946. The right of action thereunder dated from this date. Suit was filed herein on October 16, 1947, ór more than one year after the cause of action accrued. This statute authorized a
It is said the action herein is one based upon a breach of covenant against encumbrances. Such a covenant “is one which has for its object security against those rights to, or interests in, the land granted which may subsist in third persons to the diminution in value of the estate although consistent with the passing of the fee.” 21 C; J. S., Covenants, sec. 42, page 914. Such a covenant is in effect one of indemnity whereby the covenantor or grantor agrees to indemnify against an outstanding adverse title, charge, burden, or interest constituting an encumbrance. It is a covenant 11 in praesenti”, which if not true is broken as soon as made. Robinson v. Bierce, 102 Tenn., 428, 52 S. W. 992, 47 L. R. A. 275. '
There is no allegation herein that the appellees, (grantors or covenantors) knew anything about the alleged restrictions or encumbrances claimed. The notice of such, as prescribed in the regulations, was not affixed to the preceding deeds. Apparently the promulgators of the regulation did not intend this alleged restriction, or encumbrance to affect the interest conveyed by any subsequent deed when they provided in the proposed notice that “neither the insertion of the above, nor the regulation is intended to affect' the validity of the interest hereby conveyed.”
It necessarily follows that if this agreement of Clop-ton’s was not a burden or charge against the realty that then the appellant (grantee in the deed) cannot recover on a personal action of covenant against the appellees (grantor’s in the deed).
The conclusion we have reached herein seems to us inescapable. It would be an intolerable burden to place on the purchaser of real property or on the practical abstracter to require him to pry into and examine all conveyances outside the record chain of title. Of course there are ordinances of cities and statutes of the State or Federal Government that might constitute liens on realty. The abstracter for the purchaser has ways and means of finding out what these are and is bound by them. A mere regulation of a board or’ commission, which does not attempt in plain language' to 'fix a lien' on the property, should not burden the property to the extent of constituting an encumbrance thereon.
For the reasons assigned, the decree below is affirmed.