127 So. 176 | Ala. | 1929
Lead Opinion
Plaintiff counted upon a breach of defendants' covenant of warranty in the sale of a tract of land. The original complaint alleged that defendants "conveyed by their warranty deed to the plaintiff a three-fourths interest" in the lands described. Defendants' deed to plaintiff having been excluded by the court, plaintiff amended his complaint by striking the words "a three-fourths interest," and then again offered the deed in evidence. On defendants' objection that the deed was "irrelevant, immaterial and a variance from the complaint," the court again ruled against its admissibility, and plaintiff, having reserved exception to both rulings, took a non-suit with a bill of exceptions.
Consulting the briefs on both sides, we infer that the rulings heretofore noted proceeded upon the theory that the deed was a mere quitclaim and contained no warranty of title. In this the court erred. Referring to the deed, it will be seen that the word "quitclaim" nowhere occurs. It evidences an effort to "grant, bargain, sell and convey" the described real estate, and contains an express covenant of warranty of seisin free of all incumbrances with an undertaking to defend "the premises" to plaintiff, his heirs and assigns forever "against the lawful claims and demands of all persons." By inference similar to that hereinbefore noted, we conclude that the court's ruling that there was no covenant of warranty of title rested upon the language of the deed at two points, viz. "all our undivided interest" and "the premises." Such at any rate is the basis of the argument on behalf of appellees. The argument, to state it briefly as we understand it, is that the conveyance of an "undivided interest" in "the premises" imports a quitclaim only notwithstanding the express covenant and notwithstanding the fact that in his original complaint the plaintiff described the quantum of his property in the land as a "three-fourths interest."
We are referred to 18 Corpus Juris, p. 156, § 32, for a discussion of the question presented for decision. The text referred to and the statements of the note (44) set out a number of cases with the purpose to show when a deed is a quitclaim and when not; but the authorities there cited do not draw the line of Cleavage very distinctly. Teideman on Real Property, § 858, is quoted in Reynolds v. Shaver,
The difficulty in decision arises out of the phrase "undivided interest" in plaintiff's muniment of title. So far as the deed discloses, apart from the rule of construction to be presently noted, the intent of the grantors was to convey the entire fee, undivided as among themselves, or a part of the fee undivided as between themselves and another proprietor or other proprietors. But the deed recites a valuable consideration of $15,000 to the grantors in hand paid, and its terms must be construed most strongly against the grantors and in favor of the grantee. Dickson v. Van Hoose,
We have undertaken to state applicable principles of law; we intend to express no opinion as to what the judgment should be after the evidence shall have been heard.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
Addendum
In appellee's brief on rehearing we are referred to Sweet v. Brown, 12 Metc. (Mass.) 175, 45 Am. Dec. 243, and other cases in the same line, in which it was held that, where the grant was of — to quote the language of Sweet v. Brown — "all my right, title, and interest in and to that parcel of real estate [describing it]," followed by unlimited covenants of seisin, good right to convey, against incumbrances, and of warranty, it was held that these covenants were limited merely to the right and title of the grantor, whatever that might be. Here we note that the language of the deed under which appellant claimed was: "Do hereby grant, bargain, sell and convey unto the said G. J. Coston, his heirs and assigns, the following described real estate, situated in the county of Monroe and State of Alabama, to wit: All our undivided interest: (describing the land) To have and to hold the aforesaid premises to the said G. J. Coston, his heirs and assigns forever, and we do covenant with the said G. J. Coston, his heirs and assigns, and that we are lawfully seised of the aforegranted premises," etc.
We have stated the ruling in Sweet v. Brown, supra. There are similar cases noted under page 498 of Rawle on Covenants (5th Ed.). But, says Rawle: "It may however be observed of these cases, that inasmuch as all conveyances taking effect under the Statute of Uses transfer no more than the estate of the party, such a course of decision, if too strictly carried out, would in such conveyances restrain all general covenants for title to the acts of the vendor, and thus of course utterly change the nature of such covenants. It is conceived therefore that this class of cases should be limited in their application to those where the intention to convey and receive but a limited estate plainly appears on the face of the deed." We have shown the difference between the covenants in this case and in Sweet v. Brown. "And in a case in Massachusetts, where the conveyance was of 'the following described water lots,' and, appended to the description by metes and bounds, the words 'meaning and intending by this deed to convey all my right, title, and interest in and to lots numbered three and six, and my undivided portion of the aforementioned flats,' it was held that the general covenants for title which the deed contained *601
were not restricted merely to the interest of the grantor." Rawle on Covenants (5th Ed.) p. 499; Hubbard v. Apthorp, 3 Cush. (Mass.) 419. Other cases, English and American, to the same effect, will be found noted in the text of Rawle. And in Lull v. Stone,
Our conclusion is that the original opinion in this cause reached a right result.
Rehearing overruled.
