55 Ind. 409 | Ind. | 1876
This action was brought, in the court below, by Alexander "W. Blair, against Samuel H. Allen, to recover damages for breach of a covenant of warranty in a deed. The second amended complaint alleges, that, “ In the year 1828,William B. Blair, the father of appellant, died testate,
“ That said court then gave judgment that said Nancy
“ That under the judgment of said court said Joseph E. Blair obtained one-half of said lands, and that the title to said real estate has failed and been lost by a paramount title and by due course of law, and that the covenant of warranty in the deed of James and Nancy Allen has been broken.”
The complaint also alleges, “ That after the death of said J ames and Nancy Allen, the defendant ” (appellee) “ as sole heir of said James and Nancy, took, received and appropriated to his own use, of moneys, effects and property of said James, to the amount of ten thousand dollars, and holds the same subject to the payment of said James’ debts. That the estate of said J ames has been fully administered,” etc.
“ That appellant was not disturbed in his possession of said real estate and said covenant of warranty was not broken until September, 1873, after the final settlement of the estate of said James.”
The defendant demurred to the complaint for want of sufficient facts. And the demurrer was sustained by the court, to which the appellant excepted.
Judgment was rendered on demurrer, and appellant appeals to this court;
The appellee thinks that the covenants in the deed, made an exhibit in the complaint, are merely personal covenants and do not run with the land. We are of a different opinion. See Coleman v. Lyman, 42 Ind. 289, and cases there cited; also, Spencer’s case, 5 Co. 16; Kingdon v. Nottle, 4 M. & S. 53; Willard v. Tillman, 2 Hill, (N. Y.) 274; Brady v. Spurck, 27 Ill. 478; Brown v. Metz, 33 Ill. 339; Harding v. Larkin, 41 Ill. 413.
The appellee also insists that the complaint fails to show a pai’amount, outstanding title, against the covenantors. We are of a different opinion. The allegation as to that is sufficient.
That the averment of the breach of the covenant is not sufficiently alleged in the complaint, is another point made by appellee. The breach is as broad as the covenant:—this is sufficient. Van Nest v. Kellum,, 15 Ind. 264.
The appellee further objects to the complaint, because it does not aver that he had notice of the suit of eviction in Kentucky. It is not necessary he should have had such notice. Rhode v. Green, 26 Ind. 83. The record of that suit is matter of evidence, not of pleading. What it is worth as evidence is a question not before us, and therefore not decided.
Again: It is urged against the complaint that it contains no averment that the appellant ever had possession of the land. Such an averment is not necessary. See the authorities, supra.
The final objection made to the complaint by the appellee is, that the covenants of Raney Allen—she being a married woman—are void. True; but this will not relieve her husband, James Allen, nor his representatives, against his covenants; besides, the representatives of Raney Allen are not sued.
There is another question, however, the decision of which is necessary to the proper understanding of the case. By the statute concerning the aliebation of real estate, 1 R. S. 1876, p. 361, sec. 10, it is enacted that “ Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who shall have made any covenant or agreement, shall be answerable upon such covenant or agreement to the extent of property descended or devised to them, and in the manner prescribed by law.”
And in ease of the liabilities of heirs and devisees, it is subsequently provided, by section 178, 2 R. S. 1876, p. 554, that “ The heirs, devisees and distributees of a decedent, shall be liable to the extent of the property received by them from such decedent’s estate, to any creditor whose claim remains unpaid, who, six months prior to such final settlement, was insane, an infant, or out of the State; but such suit must be brought within one year after the disability is removed.”
The complaint in this case contains no averment that the claim was ever filed under section 62, nor that the creditor was insane, an infant, or out of the State. A construction has been given to these sections by numerous decisions of this court. Yoast v. Willis, 9 Ind. 548; Freeman v. The State, ex rel., etc., 18 Ind. 484; Hartman v. Lee, 30 Ind. 281; Ratcliff v. Leunig, 30 Ind. 289; The Northwestern Conference of Universalists v. Myers, 36 Ind. 375; Wilson v. Davis, 37 Ind. 141; The Cincinnati, etc., R. R. Co. v. Heaston, 43 Ind. 172; Ginn v. Collins, 43 Ind. 271; Rinard v. West, 48 Ind. 159.
In the case of Freeman v. The State, ex rel., etc., supra, it was decided that the heirs of a decedent are not liable to the payment of his debts to the extent of property received by them from him, unless the creditor shall assert his claim within the time, and in the manner, prescribed by section 178, supra.
In The Cincinnati, Richmond and Fort Wayne R. R. Co. v. Heaston, supra, David Heaston, made his promissory note to the railroad company, for fifteen hundred dollars,
In the case we are considering, the obligation could not arise until after the death of Nancy Allen,—an uncertain event, over which the vendees had no control,—nor until after the title warranted had been lost by reason of a superior title, and by due course of law, which were also events over which the vendees had no control, and which did not take place until after the estate of James Allen had been finally settled. It is very certain, then, that the appellee could not have complied with section 62, supra, by filing his claim in the clerk’s office, nor brought himself within section 178, supra, by commencing his suit within one year after certain disabilities were removed. His claim did not accrue in time to file it under said section 62, and he labored under none of the disabilities mentioned in said section 178. The question, therefore, is forced upon us, whether, after lineal and collateral warranties have been abolished by section 10, supra, and no obligation especially prescribed by law to take their place, the appellee has any remedy at all. Upon full and careful consideration, we have come to the conclusion that the legislature could not have meant to leave a meritorious class of rights without remedies for their breach. The opposite conclusion, in cases
The judgment is reversed, with costs, and the cause remanded, with instructions to overrule the demurrer to the complaint, and for. further proceedings.