112 S.E. 817 | N.C. | 1922
Lead Opinion
Tbe United States acquired its title on 15 March, 1869. In February, 1905, McAden and his cotenants executed their deed to the Covers, and on 1Y May, 1906, the Covers made a conveyance t'o the Hiawassee Lumber Company, reserving certain timber and minerals, with right of entry for purposes designated in the deed. On 19 August, 1910, the United States brought suit against the Hiawassee Lumber Company in the District Court for the Western District of North Carolina, and at the March Term, 1919, recovered a final judgment declaring the plaintiff in that action to be the owner of the land in controversy. In answer to the fourth issue his Honor concluded that the District Court had adjudged the United States to be the owner of 2,632 acres of the land embraced in the deed executed to the Covers by McAden and his ■ cotenants. This land was included, also', in the deed from the Covers to the Hiawassee Lumber Company. After rendition of the final judgment in the District Court, the plaintiffs refunded to the Hiawassee Lumber Company the consideration received by them and their predecessors, with interest from the date of payment, and on 16 December, 1919, instituted the present action to recover of the defendants the sum of $5,922, the amount refunded, with interest thereon from 1 March, 1905, as damages for the defendants’ alleged breach of warranty. Among other defenses, the defendants pleaded the statute of limitations in bar of the plaintiffs’ recovery, and this plea necessarily involves the preliminary question whether the plaintiffs’ alleged cause of action is defeated by lapse of time.
In view of the plaintiffs’ contention, it may be advisable to note the distinction between a covenant of seizin and a covenant of warranty. The former is a covenant in prcesenti, or a covenant that a particular state of things exists when the deed is delivered — juris et seisince coiy-junctio — and if it does not exist the delivery of the deed containing such a covenant causes an instant breach. A covenant of warranty is prospective. It is an agreement or assurance by the grantor -of an estate that the grantee and bis heirs and assigns shall enjoy it without interruption by virtue of a paramount title, or that they shall not by force of a paramount title be evicted from the land or deprived of its possession. Rawle on Covenants, sec. 205; Burdick on Real Prop., sec. 301; Wiggins v. Pender, 132 N. C., 634. This distinction is further observable in the conditions or circumstances that usually characterize the breach of each covenant. If the grantor is not seized, or if an encumbrance exists, the covenant of seizin is broken immediately upon the execution of the deed; but generally speaking, a covenant of warranty, being prospective in its nature, is broken only by eviction, actual or constructive, under a paramount title existing at the time the conveyance is made. Burdick, supra, 814; Wiggins v. Pender, supra; Price v. Deal, 90 N. C., 290; Coble v.
We must, therefore, inquire whether at the time the plaintiffs and the defendants executed their respective deeds there was a paramount title in the United States, and if so, whether the Hiawassee Lumber Company, after vouching in the plaintiffs/was actually or constructively evicted from any part of the purchased premises by virtue of such title. Although there is no contention that the judgment of the District Court does not conclude the Hiawassee Lumber Company, it is necessary to decide whether it likewise concludes the plaintiffs. The answer depends in part on the question of notice and the relation existing between the plaintiffs and the Hiawassee Lumber Company at the time the judgment was rendered. At common law the lord, when vouched in or notified, was required to appear and protect his vassal in the enjoyment of his fief, and, failing to do so, to give to the vassal another fief of equal value. If the warrantor had no lands or tenements, and if there was neither voucher nor writ of warrantia chartce (warranty of deed or title), there could be no recovery in value; but in the modern law a covenant of warranty is treated as an agreement of the warrantor to make good by compensation in money any loss directly caused by failure of the title which his deed purports to convey. It is not always essential to the grantee’s right o.f action on the covenant that he should give his cove-nantor notice to come in and defend the title. But if no notice is given, the covenantee, in his suit against the covenantor for breach of warranty, does not make out a prima facie case by showing judgment and eviction; he must show, in addition, that he was evicted under a paramount title, unless the covenantor was a party to the suit that brought about the eviction. 15 C. J., 1265, sec. 97. In -Jones v. Balsley, 154 N. C., 68, Walker, J., approved the doctrine stated in Carroll v. Nodine, 41 Oregon, 412, to this effect: “Before an indemnitor can be expected to defend, he must have reasonable notice of the pendency of the suit or action by which he is to be bound, and afforded an opportunity to participate in or interpose such defense as he may desire; and it is only by complying with such conditions that the party to be indemnified can estop the indemnitor to controvert the matter anew in an action against him upon the indemnity contract or obligation.” True, in Martin v. Cowles, 19 N. C., 101, approved in Wilder v. Ireland, 53 N. C., 85, it was held that a judgment in ejectment against the vendee is no evidence of a defect in the title of the vendor, when the latter is sued upon his covenant by the former; but Justice Walker observed that these cases were decided under the system of pleading, practice, and procedure prevailing at common law, when the ejectment suit was regarded with respect to the covenantor as res inter alios acta, and he could not for that reason
We are next concerned with tbe question whether tbe plaintiffs have shown an eviction under this title. In Shankle v. Ingram, 133 N. C., 255, tbe plaintiff alleged that tbe defendant bad conveyed to him 245 acres of land, with covenants of warranty; that tbe defendant bad previously conveyed 41.8 acres of this land to Jesse Reynolds; that Reynolds was in possession of bis tract, bolding adversely at tbe time tbe plaintiff acquired bis deed. Upon plaintiff’s suit for breach of warranty, it was said that since Reynolds held adverse possession under a good title at tbe time tbe plaintiff received bis deed, such adverse possession was equivalent to an ouster. If tbe plaintiff bad entered upon tbe possession of Reynolds be would have committed a trespass; and in Coble v. Wellborn, supra, Ruffin, J., said: “No man is compelled to be a trespasser, and, therefore, when it has been judicially ascertained that another is in better title, it follows that be is kept out; which is equal to being turned out.” Grist v. Hodges, 14 N. C., 200; Wiggins v. Pender, supra. Tbe immediate question, then, is this: At tbe date of tbe deed executed by tbe plaintiffs to tbe Hiawassee Lumber Company, were tbe circumstances under which tbe United States held title tantamount to a constructive eviction of tbe plaintiffs’ grantee? In effect, tbe final judgment of tbe District Court was an adjudication that tbe United States acquired its title under tbe Stevens deed before tbe execution of tbe McAden deed or plaintiffs’ conveyance to tbe Hiawassee Lumber Company. It is admitted that none of tbe grantors or grantees in tbe deed from tbe McAdens to tbe Covers ever bad actual possession of tbe land therein described, and that tbe Hiawassee Lumber Company never bad actual- possession of tbe land embraced in its deed from tbe Covers. Nor was tbe United States in tbe actual occupation. Ordinarily tbe mere existence of an outstanding paramount title to land will not authorize a recovery by tbe grantee in an action for breach of tbe covenant. There must be an eviction, actual or constructive, • but not
In view of the decision rendered at this term in Fibre Co. v. Cozad, ante, 600, we deem it proper to remark that we are not inadvertent to the probate of the Olmsted and Stevens deeds. While the probate of these deeds may be subject to the criticism set forth in that decision, we need not consider the question here, for his Honor concluded from the evidence that the plaintiffs and the defendants were bound by the judgment of the District Court. From this finding it results that the parties to this action are precluded from contesting the validity of the probate.
The judgment of his Honor is
Affirmed.
Dissenting Opinion
dissenting: J. H. McAden, trustee under the will of R. Y. McAden, on 29 October, 1902, entered into a contract with E. P. Cover to convey certain tracts of land in Cherokee and Olay counties. Before the deed was executed, both parties having died, under a proceeding instituted in Cherokee, judgment was entered decreeing that defendants herein convey to S. E. Cover and others, heirs of E. P. Cover, the plaintiffs herein, the said land at the price agreed upon of $2.25 per acre (which was paid 1 March, 1905), and the defendants, in their deed to plaintiffs, severally but not jointly, covenanted that the grantors were seized in fee of said land, have good right to convey the same in fee, that there were no encumbrances thereon, and that they would “warrant and defend the title against the lawful claims of all persons whatsoever.”
On 17 May, 1906, the heirs of F. P. Cover, grantees in the deed above referred to, and the plaintiffs in this action, conveyed the said land, with exactly the same covenants, to the Hiawassee Lumber Company. At the date of the aforesaid mentioned deed neither of the parties were in actual possession of the lands herein referred to. On 19 August, 1910, the United States brought action in the Circuit Court of the United States for the recovery of a certain part of said land, and the case was ultimately carried to the Supreme Court of the United States by appeal, and a final judgment in favor of the United States was entered 11 March, 1919, which adjudged that the United States recover of the said Hiawassee Lumber Company the 2,632 acres in controversy, and which had been conveyed by the defendants to the plaintiff. On 17 March, 1919, the Hiawassee Lumber Company demanded of the plaintiffs a
On 10 April, 1919, the plaintiffs demanded of the defendants the repayment of the sum of $2.25 per acre, with interest from the date of the payment thereof, as purchase money, which had been paid by the plaintiff to the defendant for the said 2,632 acres. This demand was repeated'in a letter of 25 April, 1919. On 6 May, 1919, the defendants acknowledged receipt of these two letters, and on 8 May they were again called upon for payment, to which their attorney made reply on 15 May, that the plaintiffs had no right to claim anything from the defendants until the plaintiffs had paid the Hiawassee Lumber Company its loss. Thereupon, on 23 May, 1919, the plaintiffs paid to the Hia-wassee Lumber Company said sum and took their full receipt therefor with interest. Notice of such payment was given to the defendants on 23 May, 1919, and demand made that they reimburse the plaintiffs. The defendants, refused to reimburse the plaintiffs for the purchase money paid by them, and this action was brought 11 December, 1919. It was admitted on the trial that the plaintiffs in this action had succeeded to all the rights of the heirs of F. P. Cover to recover of the defendants on their warranty in the deed of February, 1905, and that the lands recovered by the United States in the case against the Hiawassee Lumber Company were a portion of the lands conveyed by the defendants to the plaintiffs by above deed of February, 1905, and that neither the grantors in the deed from the McAdens to the Covers and none of the grantees in said deed ever had actual possession of the lands covered by the deed.
The sole defense was the statute'of limitations. The Hiawassee Lumber Company, grantee of the plaintiffs, having lost the land in question under a decree of the United States Supreme Court, and the plaintiffs having reimbursed said lumber company for said loss under their warranty, and neither the defendants nor plaintiffs having been in possession at the time of-the conveyance in 1905, it would seem unnecessary to discuss the liability of the defendants upon the warranty set out in the deed from them to the plaintiffs that “they had a good right to convey the land in fee, that there was no encumbrance thereon, and they would warrant and defend the title to their grantees,” and that in justice and in equity the defendants should be decreed to make good the purchase money they received in 1905 of $2.25 per acre on the 2,632 acres, and interest.
The statute of limitations is based upon the equitable principle that parties who have slept upon their rights are not entitled to recover, but ■ in this case there has been no delay.
The plaintiffs had no notice of any defect in the title, and thought themselves secure, and in good faith relied upon the warranty given
There could certainly be no action on a warranty to defend until there-was an eviction, or some act which amounted (.0 an eviction. In this case there was also a covenant of seizin at the time the deed was made,, and under some authorities the plaintiff would have been barred in a suit solely on such covenant, but in this case the action is brought on the* covenants of warranty and for quiet enjoyment on which-an action could not arise until there was an eviction or disturbance of the plaintiffs or their grantee in their right to possess the land. This occurred only after the judgment rendered against the Hiawassee Lumber Company-of eviction from the lands, and it was adjudged that the title was in the-United States. The statute of limitations, therefore, did not begin to-run until the entry of that judgment.
In 15 Corpus Juris., 1298 (sec. 181), the doctrine is thus stated: “The-right of action for a breach of covenant accrues at the time of the-breach, and the statute begins to run from that time and not from the time of execution of the covenant,” citing a large number of authorities, from many states and countries.
In 1 R. O. L., 1186, the same doctrine is thus stated: “It is well settled that the statute of limitations begins to run against an action for breach of warranty only from the time of actual or constructive eviction. Where, however, a superior title is outstanding in the third person, at the time of the execution of the warranty deed, the covenants of the deed are broken when that title is actually asserted and the covenantee is. obliged to surrender possession so that the statute of limitations commences then to run rather than from the date of the delivery of the deed.”
The Hiawassee Lumber Company was obliged to yield to the title of the United States by the judgment of the Court in 1919, and immediately 'the right of action against the defendants arose and the- statute-of limitation then began to run, and not before. “In an action for-breach of warranty, the question of action does not arise until there is. an ouster.” Mizzell v. Ruffin, 118 N. C., 69.
In 13 Anno. Gas., 700, the law is thus stated: “It is well settled that the statute of limitations begins to run against an action, brought for a breach of warranty, only from the time of actual or constructive eviction,” citing a large number of cases, among them Flowers v. Foreman, 23 Howard, 183; Mizzell v. Ruffin, supra; Wiggins v. Pender, supra, and Shankle v. Ingram, 133 N. C., 254.
In Flowers v. Foreman, supra, the United States Supreme Court said: “The cause of action accrues on a covenant of warranty when a judgment of eviction is rendered or when the defendant in that suit paid the money to satisfy the successful party in that suit.”
The authorities to the above effect are so numerous that we will not add any more, but will merely advert to the fact that if, as the defendants contend, the possession of lands belonging to the Government confers no right upon the possessor, no lapse of time should confer immunity upon a warrantor. Any other view would certainly work a great injustice in all such cases. It is difficult to see how the plaintiffs had a cause of action on the warranty to defend the title until the Government made its claim. Undoubtedly, if the plaintiffs had brought suit on the warranty to defend title before the Government made claim to the land, they would have failed in their action because their right to possession under the deed from the defendants had not been disturbed. All parties assumed that the lands belonged to the defendants, who warranted title and covenanted that they would defend it, and the title was not questioned by anybody until the Government brought suit in 1910.
The defendants should make good to the plaintiffs the money which the defendants received for the land, with interest, when they received notice that their grantees, the plaintiffs, had been compelled to make good under the same warranty to the lumber company, who had been evicted by the judgment of the Court in favor of the United States. It seems that the defendants themselves were of this opinion, for when payment was first demanded, their only objection, then, was that the plaintiffs had not then paid in full the Hiawassee Lumber Company, their own grantee.
The right of the plaintiffs to recover the purchase money paid by them to the defendants rests upon the soundest principles of justice which cannot be defeated by reference to minute technicalities in the complicated procedure under the Feudal System so long ago (1660) happily abolished by the statute, 12 Charles II.
Lead Opinion
CLARK, C.J., dissenting. Civil action to recover damages for alleged breach of warranty title. The parties waived a trial by jury, and agreed that the court, after hearing the evidence and the argument, should answer the issues. The plaintiff introduced in evidence the following:
1. A deed from Edwin B. Olmsted and wife to Levi Stevens, dated 7 February, 1868, purporting to convey about 5,000 acres of land in Cherokee County. *688
2. A deed for the same land from Levi Stevens and wife to the United States of America, dated 15 March, 1869.
3. An agreement between J. H. McAden, trustee, and F. P. Cover, dated 29 October, 1902, by which McAden was to sell and Cover was to buy certain tracts in Cherokee and Clay, containing several thousand acres.
4. A deed, with several, but not joint, covenants of warranty, from H. M. McAden and others to S.E. Cover and others, dated ____ February, 1905, executed in pursuance of said agreement.
5. A deed, with the usual covenants of warranty, from S.E. Cover and others to the Hiawassee Lumber Company, conveying the land described in the deed from McAden to Cover. It was admitted that the plaintiffs are the children of F. P. Cover. It is not necessary to (643) refer particularly to the orders making additional parties, or to the special proceedings for the sale of the interest of minors.
Plaintiffs introduced, also, a judgment of the District Court of the United States for the Western District of North Carolina, rendered at March Term, 1919, in an action entitled "United States v. Hiawassee LumberCompany," adjudging that the plaintiff in that action was the owner of the land conveyed in the Olmsted and Stevens deeds. This is a part of the land conveyed by McAden and others to the Covers, and by the Covers to the Hiawassee Lumber Company.
The plaintiffs alleged that the United States was seized in fee of the land described in grant No. 3110 at the date of the deed from McAden and others to the Covers, and that the makers had no title to convey, and that after the District Court adjudged the United States to be the owner of this land, the plaintiffs paid to the Hiawassee Lumber Company the amount received as the purchase price, with interest at 6 per cent from date of receipt to date of payment, namely 22 May, 1919. The plaintiffs have sued to recover $5,922 with interest. His Honor answered the issues, finding that defendants, except the minors, covenanted to warrant and defend the title to the lands described in the complaint; that title vested in the United States by virtue of the Olmsted and Stevens deeds; that the plaintiffs and defendants had notice of the action of the United States against Hiawassee Lumber Company; that plaintiff's accounted to the Hiawassee Lumber Company for the loss caused by its breach of warranty; that the judgment of the District Court and plaintiff's settlement with Hiawassee Lumber Company constituted an ouster, and assessed certain damages. His Honor answered the seventh issue as follows:
"Is the cause of action of the plaintiffs barred by the statute of limitations, as alleged in the answer? Answer: Yes, the court being of the *689 opinion that plaintiffs are estopped by reason of the judgment in United States Circuit Court in the case of United States v. Hiawassee LumberCompany to deny that their cause of action arose upon the execution of the deed to them by the defendants in 1905; and the court further is of the opinion, and so holds, that under the judgment above mentioned the title to the lands in controversy, insofar as plaintiffs and defendants are concerned, was in the United States, and the plaintiffs and defendants having neither of them been in the actual possession of any part of said property that the plaintiff's cause of action arose immediately upon the execution and delivery of the said deed to them by the defendants."
Judgment; all parties appealed. The United States acquired its title on 15 March, 1869. In February, 1905, McAden and his cotenants executed (644) their deed to the Covers, and on 17 May, 1906, the Covers made a conveyance to the Hiawassee Lumber Company, reserving certain timber and minerals, with right of entry for purposes designated in the deed. On 19 August, 1910, the United States brought suit against the Hiawassee Lumber Company in the District Court for the Western District of North Carolina, and at the March Term, 1919, recovered a final judgment declaring the plaintiff in that action to be the owner of the land in controversy. In answer to the fourth issue his Honor concluded that the District Court had adjudged the United States to be the owner of 2,632 acres of the land embraced in the deed executed to the Covers by McAden and his cotenants. This land was included, also, in the deed from the Covers to the Hiawassee Lumber Company. After rendition of the final judgment in the District Court, the plaintiffs refunded to the Hiawassee Lumber Company the consideration received by them and their predecessors, with interest from the date of payment, and on 16 December, 1919, instituted the present action to recover of the defendants the sum of $5,922, the amount refunded, with interest thereon from 1 March, 1905, as damages for the defendants' alleged breach of warranty. Among other defenses, the defendants pleaded the statute of limitations in bar of the plaintiffs' recovery; and this plea necessarily involves the preliminary question whether the plaintiffs' alleged cause of action is defeated by lapse of time.
In view of the plaintiffs' contention, it may be advisable to note the distinction between a covenant of seizin and a covenant of warranty. The former is a covenant in praesenti, or a covenant that a particular *690
state of things exists when the deed is delivered — juris et seisinaeconjunctio — and if it does not exist the delivery of the deed containing such a covenant causes an instant breach. A covenant of warranty is prospective. It is an agreement or assurance by the grantor of an estate that the grantee and his heirs and assigns shall enjoy it without interruption by virtue of a paramount title, or that they shall not by force of a paramount title be evicted from the land or deprived of its possession. Rawle on Covenants, sec. 205; Burdick on Real Prop., sec. 301;Wiggins v. Pender,
We must, therefore, inquire whether at the time the plaintiffs and the defendants executed their respective deeds there was a paramount title in the United States, and if so, whether the Hiawassee Lumber Company, after vouching in the plaintiffs, was actually or constructively evicted from any part of the purchased premises by virtue of such title. Although there is no contention that the judgment of the District Court does not conclude the Hiawassee Lumber Company, it is necessary to decide whether it likewise concludes the plaintiffs. The answer depends in part on the question of notice and the relation existing between the plaintiffs and the Hiawassee Lumber Company at the time the judgment was rendered. At common law the lord, when vouched in or notified, was required to appear and protect his vassal in the enjoyment of his fief, and, failing to do so, to give to the vassal another fief of equal value. If the warrantor had no lands or tenements, and if there was neither voucher nor writ of warrantia chartae
(warranty of deed or title), there could be no recovery in value; but in the modern law a covenant of warranty is treated as an agreement of the warrantor to make good by compensation in money any loss directly caused by failure of the title which his deed purports to convey. It is not always essential to the grantee's right of action on the covenant that he should give his covenantor notice to come in and defend the title. But if no notice is given, the covenantee, in his suit against the covenantor for breach of warranty, does not make out a prima facie case by showing judgment and eviction; he must show, in addition, that he was evicted *691
under a paramount title, unless the covenantor was a party to the suit that brought about the eviction. 15 C. J. 1265, sec. 97. In Jones v.Balsley,
We are next concerned with the question whether the plaintiffs have shown an eviction under this title. In Shankle v. Ingram,
Applying these principles, we conclude that neither the plaintiffs nor the defendants had title to the land when their respective (648) deeds were executed, that the paramount title of the United States constituted such hostile assertion as amounted to a constructive eviction, and that the plaintiffs' alleged cause of action accrued at the time of the ouster. Since the summons was issued on 16 December, 1919, it follows that the plaintiffs' action is barred by the statute of limitations. C. S. 437(2).
In view of the decision rendered at this term in Fibre Co. v. Cozad,ante, 600, we deem it proper to remark that we are not inadvertent to the probate of the Olmsted and Stevens deeds. While the probate of these deeds may be subject to the criticism set forth in that decision, we need not consider the question here, for his Honor concluded from the evidence that the plaintiffs and the defendants were bound by the judgment of the District Court. From this finding it results that the parties to this action are precluded from contesting the validity of the probate.
The judgment of his Honor is
Affirmed.
