47 N.Y.S. 489 | N.Y. App. Div. | 1897
On January 27, 189.2, Elvira Russell conveyed certain land in ■Kings county to Henry L. Brown and Southard .Brown, by a deed Containing a covenant of seizin, -a covenant for quiet enjoyment, a covenant against incumbrances, a covenant for further assurance, and a covenant of warranty. The covenant against incumbrances was ■“ that the said premises are free from incumbrances, excepting a mortgage of five thousand dollars now a lien thereon.” As matter of fact, the $5,000 mortgage thus mentioned was not the only incumbrance on the property. There was a lien for taxes,
On May 20, 1892, Henry L. Brown conveyed all his interest in the premises to Southard Brown, his co-tenant, under the conveyance from Elvira Russell, by a quit-claim deed which contained no covenants.
By subsequent conveyances, each containing a covenant against incumbrances in the same words as the covenant in the deed from Elvira Russell to the Browns, the title became vested in one Minnie "Brown, who on March 8, 1894, paid the above-mentioned tax, which at that time amounted to $187.53. Minnie Brown has assigned to the plaintiff whatever claim accrued in her behalf and against Elvira Russell by reason of the payment of the tax; and in the present suit the plaintiff, as Minnie Brown’s assignee, has recovered a judgment against the personal representativés of Elvira Russell for the amount thus paid to relieve the premises from the tax lien.
A covenant is said to run with the land when such covenant, given by a prior owner, inures to the be.nefit of the subsequent owners in the chain of title. Until breach, all covenants for title run with the land. Under the common-law doctrine of covenants, according to the weight of American authority, the covenant of seizin, the covenant of right to convey and probably the covenant against incumbrances, if broken at all, are deemed to be broken as soon as made, and, therefore, are regarded as covenants which do not run with the land ;• while the covenant of warranty and the covenant for quiet enjoyment refer to the future, and, hence, run with the land. In Vermont, however, the covenant against incumbrances has been expressly held to run with the land, and to be enforcible for the benefit of the party holding the legal title, and this without any legislation relating to the assignability of choses in action (Cole v. Kimball, 52 Vt. 639); while in a number of other States, including New York, where there has been such legislation, it has been deemed effective to confer upon a remote grantee the right to sue upon a covenant against incumbrances given to his predecessor in title. (Boyd v. Belmont, 58 How. Pr. 513; Andrews v. Appel, 22 Hun, 429; Coleman v. Bresnaham, 54 id. 619.)
The learned trial judge in the present case recognized the common-law rule to be, as stated by Chancellor Kent, that a covenant
In Boyd v. Belmont (58 How. Pr. 513) Chief Judge Charles P. Daly, of the New York Court of Common Pleas, explicitly declared that- the rule that a covenant against incumbfances does not pass, to-a subsequent purchaser of the land, was no longer the law iii this-State, because the difficulty which led to the adoption of a rule setechnical and so unjust in its practical operation no longer existed here. ■ “ The covenant against incumbrances,” he said, “ now that the objection that choses. in action are not assignable no longer exists, necessarily passes to the person to whom the land is conveyed* together with the land, because, if there be an incumbrance, it. affects the value of the land, and to the extent of the incumbrance impairs the title.” This was only a Special Term decision, but it was made by a learned and distinguished judge.
In Andrews v. Appel (22 Hun, 429) the General Term of the fourth department upheld the right of a remote grantee to maintain an action for the breach of a covenant against incumbrances, holding that the objection which existed at common law that a covenant, or chose in action was not assignable had been obviated by modern legislation iii this State. And to the same effect is the decision of the General Term of the third department in Coleman v. Bresnaham (supra), in which Landon, J., speaking for the court, says r. “ Since the - statute has made such choses in action assignable, * ■* * a disposition has been shown to repudiate the ancient, rule and .to permit the grantee'or devisee of the covenantee, if he-suffers from the breach of the covenant, to resort to the covenant, for protection; and redress.” .. ' . -
It is true they are in conflict with the opinion of the Appellate Division in the first department, as recently expressed in the case of The Seventy-third Street Building Co. v. Jencks (19 App. Div. 314), where Ingraham, J., says that a covenant against incumbrances has never been held to run with the land, and quotes a sentence from McGuckin v. Milbank (152 N. Y. 297) to the effóct that the benefit of the covenant against incumbrances there under consideration did not pass to the plaintiff’s grantees by the conveyances from the plaimtiff. This incidental remark in the latter case, however, should not be deemed controlling, as no issue was presented demanding a determination of the question whether the plaintiff’s grantees were entitled to the benefit of the covenant or not. The main proposition therein discussed and decided was that a covenantee, in undisturbed possession of the premises, will, be restricted to the recovery of nominal damages for the breach of a covenant against incumbrances by reason of the existence of an outstanding mortgage, unless he has paid off
Apart from authority, there is weighty legal reasoning leading to the same result, such as may be found in the opinion óf Mr. Justice Cooley in Post v. Campan (42 Mich. 90), where he discusses the character and effect of the covenant against'incumbrances, and uses this language: “ A covenant may be said to run with the land when its purpose is to give future protection to the title which the deed ■containing the covenant undertook to convey, and it does not' run •with the land when its whole force is spent in giving assurance ¡against something which immediately affects the title and causes present damage. Tested by this rule, a covenant against an incum- . brance which consists in a right of way, would not run with the land; but' a covenant against a money charge must attach itself to fhe title conveyed and accompany it, not only for the protection of :the covenantee, but for the protection of any of his assigns whom the-incumbrance may eventually damnify.”
The case was decided on other grounds, so that this statement of the law was not adopted by the court, but it is nevertheless instructive as the view of an eminent lawyer, which has been sanctioned by ■decisions of the tribunals of last resort in a number of western States.
To my own mind, if the question were an open one it would be more satisfactory to regard the covenant against incumbrances as in .¡substance and effect an undertaking that the possessor should never be damnified by reason of any. incumbrances thereon existing ¡at the time of the conveyance. Thus regarded, there would be no ►breach until there was a disturbance of possession or until the •owner had paid off the incumbrance, and until there was a breach •■the covenant would run with the land. This view would be most .in harmony with the rule affirmed in the McGuckin case, which •denies any real redress for a false covenant against incumbrances ' until possession has been interfered with or money has been paid out. ' But the great difficulty in treating the covenant as running with the land arises, not from the mere rule that' choses in action were
■ This view of the case at bar leads to an affirmance of the judgment. .But the judgment may be upheld on another ground. The covenant for further assurance, which was clearly prospective and ran with the land, operated to carry with it for the benefit of subsequent grantees, the covenant against incumbrances. Such was the doctrine enforced in Colby v. Osgood (29 Barb. 339), and Ernst v. Parsons (54 How. Pr. 163). It is true the complaint says nothing about the covenant, but it was proved without objection, and it may be considered, if necessary, to support the judgment. There
The judgment should be affirmed.
All copcurred.
Judgipent and order affirmed, with'costs.