12 Ky. 262 | Ky. Ct. App. | 1822
THIS is an action brought by the appellee, to recover of the appellant, the value of a lot, in the town of Lancaster, which had been conveyed by the appellant, with warranty, to Stephen Perkins, and by Per
It does not appear by any entry on the record, that the declaration was amended, after its return for fur, ther proceedings, pursuant to the mandate of this court. But the declaration now certified, is widely different from what it appeared formerly: omitting all that matter for which it was then adjudged vitious, which leads to the conclusion, that the declaration was in fact amended, without any note upon the récord, and the parties appear to have commenced the pleadings, de novo, without any regard to the former pleadings. To this new declaration, the appellant again demurred, and relied for cause that the action was local, and that, as the déclaration shewed that the lot conveyed and warranted was in Garrard county, and this action was brought in Mercer, it could not be sustained. The court below, overruled the demurrer, and the propriety of this decision, forms the first question now presented for our decision.
As said in the former opinion in this cause, this is . an action unknown in England, but tolerated in this state, since the abolition of vouchers by statute, Jest there should be a defect in remedy. It is based on the fact, that the covenant runs with the land, and is transferred from one grantee to another; so that the first warrantor, in point of time, may be first made responsible. The action of covenant, is, in its nature, generally transitory, and may be brought in any court of competent jurisdiction ; and we might be disposed to bring this action within the general rule, if we could do so, in consistency with other principles of common law. To the general, rule, however, there are exceptions, and under these exceptions, both the actions of debt and covenant, sometimes become local. The principle which determines whether an action of this nature is local or transitory, is simply this : If the action is founded on privity of contract between the parties, then the action, whether debt or covenant, is transitory. But, if there is no privity of contract, and the action is founded on privity of estate only, such as a covenant that
The question tlien arises, Can this be taken advantage of, upon general demurrer. It. is said ini Saunders 241, N. 6„that. it can, although it may be aided by a verdict according to the statute IS and If, Car. 2 C. 8; and in the case of Thursby vs Plant, it was moved in am st of judgment, on the ground of its appearing on the face of the declaration ; and in that case, no doubt is suggested that the objection came toó late. But the statute, which transferred the privity of contract, alone saved the action. It is a rule on this subject, that if the court has <ió jurisdiction of the subject matter, it is not necessary to plead it in abatement; but it may be given in evidence under the general issue. , Here, however, the circuit court of Mercer has jurisdiction between these parties, and as to subject matters arising v itliin the- precincts of the coun. ty, its jurisdiction, even in actions ol this nature, is as
But there is still another objection to.the appellants availing himself of this matter at this stage of the action. ' It goes to the propriety of the suit being brought where it is, and defeats the writ itself, on a point which cannot touch the merits; and as the canse has been before this court and reversed in favor of thé appellant, and a mandate returned for further proceedings, ought he now to be permitted to travel back to the writ, and avail himself of the objection of winch he might have availed himself in the court below on the first trial, and which he might have relied on in this court, when he was first here on a writ of error ?• If may be said in answer to this, that this objection was apparent to this court on that occasion, and the declaration was brought before the court on demurrer, and it ought then to have been decided, and as it was then omitted, he has now a right to present it. If it be admitted that this court could then have reached the question, but omitted to notice it, it does not thence follow, that the party would have a right to present it on another occasion. As well might it he said, that having failed to assign a palpable error on the first occasion, he has a right to bring another writ, and then assign it. It has been the undeviating rule of this court, that when the party has tried his right once on a writ of error, relying on sufficient points, he is presumed to have waived all others, however sufficient they may be. In like manner, if the court itself should pretermit improvidently, sufficient points to destroy the writ, well made, the rule ought to apply, and the decision must he decisive between the parties as to all matters which might there have been decided, as the record then stood. Sound policy requires this rule to he inflexf*
It is also contended, that the declaration is defective in not making proferí of the original deed from the appellant to Perkins, but only a copy. To this, it may be replied, that the party, who is not entitled
In this case, the plaintiff below made profert of his original deed from Perkins to himself, but he was not entitled as a matter of law, to the deed of conveyance, from Birney, the appellant, to Perkins. This, Perkins might, and probably did retain ; and therefore, no profert was required, and the profert of a copy ought not. therefore, to vitiate the declaration. To this, may be added, that the appellant craved and took oyer of a copy, and then demurred. It a profert had been necessary, and he had, without oyer, demurred, the objection might have been available; but it is questionable, whether after craving and talcing oyer of a copy, he ought to be allowed to avail himself of the want of the original. The demurrer on this ground, was therefore properly overruled.
The defendant below, now appellant, filed several pleas to the declaration ; one of covenants performed, and two traversing the allegation of the declaration that the purchasers holding under the appellee, were evicted by title paramount, on all of which, issue was joined. Two more special pleas were filed by the appellant and demurred to, and the deinurrer sustained. These pleas were essentially the same in substance, to one considered by this court in the former opinion rendered in this cause, and for the same reasons which were given then for deciding that plea invalid, the court below did right in overruling these, and they need not again be herein recited.
On the trial, the appellant objected to the reading of the deed from James Birney, the appellant, to Stephen Perkins, on the ground, that the deed offered, was variant from the one recited ; that recited being a deed from James Birney, and the one offered, purporting to be a deed, from Birney and wife. The court overruled this objection and admitted the deed.
To this objection, this answer may be given. There was no issue in the cause which denied the existence of such a deed, and therefore, it need not have been pródueed, except for the purpose of shewing the consideration as the criterion of damages to be recovered, arid if the appellant could avail himself of the; variance then, it would have been good on his demurrer, which had been decided against him. But we view the objection
■ he next question presented, is, the appellee to shew title paramount to that conveyed by the appellant, exhibited and read a deed executed, by six persons who; stile themáelves trustees of the town of Lancaster in the county of Garrard, dated the 2,3d December 1798, to Jacob Miller, for the lot in question. The'counsel for the appellant moved the court to instruct the jury, that nothing passed by the said, deed; which instruction the court refused. On what ground this instruction was.asked, is not explained by the record. We perceive no objection to the form or substance of the deed, to pass title from the trustees. It is, however, contended in this court, that there was no evidence' that the persons who executed the deed, were trustees of the town. If this question was intended by the inotion, it was not presented in a correct attitude. It would have been more correct to have applied to the com t previously, to have rejected the deed as inadmissible. till ¡he party tendering it, shewed that, the persons who made it, were trustees, than after the deed was read, to apply to the court to decide, that it passed nothing on its face, when it there asserted, that the trustees made it. This ivas virtually asking the court, from the face of the deed to' decide, that they were not tru-tees. and that they had Usurped the authority, which they professed to exercise.
The counsel for the appellant,' objected to the admission of.a copy of the record in ejectment from the Garrard circuit; court, wherein the lot was recovered*
' Proof was next introduced to shew the relation of the lessors of the plaintiff in the action of ejectment, írom which it appeared, that Jacob Miller, to whom
The counsel for the appellant moved the court to instruct the jury, that if they believed these facts, the recovery alleged in the declaration, was not justified by the evidence, it not being evidence to shew in that View, that the persons alleged to have recovered, were vested with a superior and paramount title to that set up by the defendants in that action. The court over, ruled the motion, and we conceive rightfully. If Jacob Miller on his death, left no other heirs but his brothers anil sisters, and their decendants, they took the land. It is true, Samuel Miller, one of them, was not joined in the action as lessor; but the lessors who did sue, recovered only three fourths, which was according to the title they held. li‘, by this motion, it was intended to reach the question that Samuel Miller ought to have been joined as a lessor, or that the lessors who did join ought to have declared upon separate demises, we should not be disposed to permit the appellant to avail himself of these technical objections, which might have been made on the trial of the ejectment, evert if they were sound. The true inquiry now is, bad they title, and did they recover according to it, and no more, in a legal form of action? If that is true, the allegation of an eviction by title paramount, is supported, and the appellee ought to recover.
Upon the whole, the judgment of the court below, must he affirmed with damages and costs.