Armstrong v. Darby

26 Mo. 517 | Mo. | 1858

Napton, Judge,

delivered the opinion of the court.

The question in this case is, whether our statutory covenant for further assurance obliges the vendor to remove an outstanding encumbrance. This covenant is substantially a covenant that the vendor will, at the request and cost of the vendee, perform all “ acts, deeds, conveyances and assurances,” either by fine, recovery or other form of assurance, which may be wanting to the confirmation of the vendee’s title. (Platt on Covenant, p. 341; Rawle, 203.) In King v. Jones, 4 Taunt. 418, Mr. Justice Heath said: “ Under this covenant the heir might call for further assurances, even to levy a fine ; he certainly might have called for the removal of a judgment or other encumbrance.” The commentators seem to have adopted this observation in King v. Jones. Platt says : “ The levying a fine is included under a covenant to do all lawful and reasonable acts for further assurance. The removal of a judgment or other encumbrance may likewise be called for.” (Platt on Cov. 344.) Rawle says: “In considering what acts may be reasonably required under this covenant, the purchaser may, as of course, require a fine to be levied, or a judgment or other encumbrance to removed.” Sugden says, “ Under a covenant for further assurance, a purchaser may of course require the removal of a judgment or other encumbrance.”

All these writers refer to King v. Jones as the authority upon which these remarks are based. It is further stated by Platt in his treatise, that this covenant operates as well to secure the performance of all acts for supplying any defect in the title of the vendor as to remove all objections to the sufficiency and security of the instrument of conveyance to the vendee. Such language as this is very comprehensive. Sir Edward Sugden says, in the same chapter we have quoted from above, in speaking of the covenant for further assurance, “ If the title prove bad, and the defect can be supplied by the vendor, the purchaser may file a bill in equity for a specific performance of the covenant for further assurance ; and a vendor who has sold a bad title will, under a covenant for further assurance, be compellable to convey any title which he may have acquired since the conveyance, although he actually purchased such title for a valuable consideration.” This expression of Sugden, to which he gives stress by italicising the words, may furnish an explanation to Mr. Justice Heath’s declaration of the law in King v. Jones, and which has been adopted without explanation by the text writers. If the defect in the vendor’s title can be supplied by a conveyance from him, the covenant for further assurance would clearly protect the vendee. But if the covenant for further assurance, as intimated by Platt, applies to any defect of title in the vendor, whether such defect can be supplied by the vendor or not, it is greatly more comprehensive than any other covenant for title, and may be said to render most of them totally superfluous. Why insert a covenant against encumbrances, if the covenant for further assurance requires the vendor to buy up an outstanding mortgage or judgment and convey to the purchaser ? Of what avail is the covenant of indefeasible seizin, if all encumbrances must be removed under the convenant for further assurance ?

The protection furnished a purchaser by the covenants of seizin and against encumbrances are known to be imperfect, and insufficient in many cases to secure him against the actual damage resulting from their breach, by reason of the restrictions which courts have imposed upon the measure of damages. Why should these covenants ever have been resorted to, if the covenant for further assurance would furnish an equally satisfactory remedy at law for its breach and a greatly more efficient protection in equity by an action for its specific performance ? The doctrine of Mr. Justice Heath and the writers who have followed him must be understood in a qualified sense to reconcile it with the practice and understanding of the profession. The judgments and other encumbrances to which they allude must be understood to be such as the vendor has control of.

The judgment of the land court is affirmed;

the other judges concurring.