58 How. Pr. 513 | New York Court of Common Pleas | 1880
A covenant in a deed against incumbrances has all that is essential in a covenant running with the land, for what is required in a covenant to make it run 'with the land is that it shall affect the nature, quality or value of the property conveyed, and that there shall be in respect to it privity of estate (Platt on Covenants, 461; Colby agt. Osgood, 29 Barb., 343 and cases cited). The reason, however, why it was held not to run Avith the land is the one given in Lewis agt. Ridge (Cro. Eliz., 863), that such a covenant is broken when the deed is delivered, there being then an incumbrance; so that it is, on the delivery of deed, merely a chose in action, which, at the early period when Lewis agt. Ridge was decided, could not be transferred, and, therefore, could not pass with the land, as a chose in action was incapable of assignment by the common law so as to vest in the assignee any right to sue upon it; and it was upon this ground that it was held in this country that no action could be maintained by an assignee upon such a covenant, or the covenant of seizin, or of the right to convey, because if not true there was a breach of these covenants as soon as executed that made them choses in action which were not assignable (4 Kent's Com., 471 [4th ed.] ; Greenby agt. Wilcocks, 2 Johns. R., 1; Marshall agt. Hobbes, 2 Mass., 433; Bartholomew agt. Candee, 4 Pick., 167).
This rule was founded upon purely technical grounds, and has not been regarded as a satisfactory one (Colby agt. Osgood, 29 Barb., 341, 342, 343), for the reasons given in the very able dissenting opinion of judge Bbockholst Livingston, in Greenby agt. Wilcocks (supra), as the assignee in possession, if the incumbrance remained and was enforced or had to be
In Kingdom agt. Nottle (1 M. & S., 355) it was held that upon a covenant of seizin, which comes within the same rule, being broken, if untrue, as soon as it was made, that no action could be maintained by the executor for the breach of such a covenant; that the testator might have sued for the breach of it during his lifetime, but as he had not the covenant with the right to sue for the breach of it, devolved with the estate upon the devisee, which was equivalent to holding that the covenant ran with the land and passed to the devisee, notwithstanding that it had been broken in the lifetime of the testator; and the devisee having afterwards brought his action upon the same covenant, recovered for the breach of it (Kingdom agt. Nottle, 4 M. & S., 53), the court holding that such a covenant ran with the land, and, though broken during the lifetime of the covenantee, that it was a continmng breach in the time of the devisee, so as to entitle him to bring an action for the injury he had sustained by the breach of it.
In Backay agt. McCoy (3 Ohio, 211), after a full examination of the cases in this state, in Massachusetts, and in England, it was held that if the grantor, at the time of the conveyance was in possession under color of title, claiming a fee, that the covenant of seizin is a real covenant that is annexed to the land and passes with it to the heir or assignee, until he who has the paramount title asserts it by the eviction of the person in possession, who then has a claim for damages under the covenant, wMch he may enforce by action, and being then a thing in action, it is not, after that, assignable by the common law. In Foote agt. Burnett (10 Ohio, 311), after a very thorough review of all the authorities, and of the preceding case in the same court, it was held that a covenant against
But it is not necessary, in overruling the demurrer, to rest on that ground alone. The rule that a covenant against incumbrances, which is broken when the deed is delivered, does not pass, like covenants that run with the land, to a subsequent purchaser, as it is then a chose in action, which is not assignable, is no longer the law in this state, because the reason upon which it was founded — or, to express it differently, the difficulty which led to the adoption of a rule so technical and so unjust in its practical operation — no longer exists in this state. Though dioses in action were not assignable at the common law they were assignable in equity. Courts of equity would always protect the beneficial interest of the assignee, and, ultimately, courts of law recognized the right of the assignee of a chose in action to sue upon it in the name of the assignee; so that even in courts of law it became little more than a technical rule of pleading in respect to parties, which the Code finally abolished by providing that every action shall be prosecuted in the name of the real party in interest; and the one hundred and twelfth section (Code of 1870) makes express provision for actions by an assignee of a thing in action. This, together with the general provision that the distinction between suits at law and suits in equity and the form of all such actions are abolished, and that there is to be but one form of action, has swept away the whole ground upon which this rule rested. All choses in action are assignable, except those that from their nature, or because they are forbidden by law, cannot be assigned, such as the right to a revolutionary pension, the unearned salary of a public officer, the beneficial interest of a cestui que trust in certain cases, &c.; and the action must be brought in the name of the