5 Ga. 274 | Ga. | 1848
By the Court.
delivering the opinion.
The facts in this' case are numerous, and so are the points presented for our consideration. I state such facts as appear to be necessary to an understanding of the case generally, leaving minuter specification for each question as it arises. Abner H. Flewellen, administrator upon the estate of N. H. Harris, de
The order in which debts of a testator or intestate shall be paid, is prescribed by the Act of 1792. The section of that Act which specifies this order, is in the following words: “ The debts due by any testator or intestate, shall be paid by the executors and administrators, in the order following, viz. funeral and other expenses of the last sickness; charges of probate and will, or of the letters of administration; next debts due to the public; next judgments, mortgages and executions, the eldest first; _ next rent, then bonds or other obligations, and lastly, debts due on open counts.” Prince, 228; 229. ac-
Besides all this, in 1799, the Legislature declared that “ all bonds and other specialties, and promissory notes, and other liquidated demands, bearing date since 9th of June, 1791, whether for money or other thing, shall be of equal dignity, Sj-c." Prince, object or purpose of negotiability, or whether it relates to and de426. Now whether this equality of dignity refers alone to the dares a general equality, it is still proof that for some purposes the Legislature have abolished, in this State, the technical distinctions between notes and bonds. From that Act, therefore, we derive confirmation of our opinion. I am aware that the Act of South Carolina, of which ours is a literal copy, has received there a' different construction. See the Ex’rs of Harbison vs. the Adm’rs of Giles, 1 Bay, 275. Rippon’s Ex’rs vs. Townsend’s Ex’rs, 1 Bay, 445. Ours, however, seems to us to be the mo-re reasonable construction, and founded in the better policy. The Court below held that promissory notes are not embraced in the words bonds or other obligations, as used in sec. 10, of the Act of 1792, and that decision we, for the reasons given, reverse.
The ancient covenant of waranty was a real covenant, binding upon the covenantor and the heir. In suits upon this covenant, the recovery was in other lands equivalent in value to the lands sold, at the time of the sale. There is no doubt but this was the mode and measure of recovery npon the old covenants of warranty. In feudal times, lands were esteemed more highly than money, for reasons growing out of feudal institutions, and the anti-commercial tendencies of the age. Hence, the recovery wasinlands. But what is important to notice, is, that in the earliest days of the Common Law, the measure of recovery was the value of the land at the time thewarranty was made. Bracton de warrantia, lib. 5, c. 13, sec. 5. Bro.tit. voucher, pl. 69. Ibid, tit. Recover in value, pl. 59. Year Book. 30 Edw. III. 146. Ibid, 19. Hen. VI. 46 a, 61 a. Ballet vs. Ballet, Godb. 151. Glanv. Lib. 3, c. 4. Fletce. Lib. 6, c. 23, s. 3, 4. 2 Roll’s Ab. 772, 773. Cro. Car. 456. 4 Kent’s Comm. 475. 4 Johns. R. 1.
Ina'much as a personal action would not lie upon the covenant of warranty, and when the value of money relatively to lands had risen, in consequence of the revival of commerce and the giving way of feudal institutions and policy, and after the introduction of alienations by bargain and sale, a new species of covenant was devised, to wit: the personal covenants of this day. Purchasers of land desired the personal security of the vendor, and hence are covenants of warranty, of seisin, and covenants for quiet enjoyment, S¡e. Although we thus find engrafted upon the Common Law, a new security and a new remedy, yet we find no alteration made in the rule, as to the measui’e of the covenantor’s liability upon a breach. That continued the same. I believe there is no case in the English books to show the contrary. The recovery, instead of being in lands, as formerly, is now in money, yet the amount of it is regulated by the value of the
Such is the rule of the Common Law, and it is right upon principle. The covenant in this case was a covenant of warranty of title. There was no covenant for quiet enjoyment, none against incumbrances. And as before stated, there was an eviction by judgment in Ejectment. The decision we now make, therefore, is in reference alone to the case — that is, it applies to a covenant of warranty upon eviction. What would be the measure of damages upon a breach of a covenant for quiet enjoyment, when the breach does not .extend to a breach of a covenant of seisin in the same deed, Or in a case where there is only a covenant for quiet enjoyment, we do not now determine. I yviH only remark, that in case there is only a covenant for quiet enjoyment, and the breach of that amounts to a total failure of title, Chancellor Kent holds, (and many .other eminent men,) that the rule of damages is the purchase money, with interest, and no more. And farther, that when the covenant for quiet enjoyment follows a covenant of seisin in the same deed, the intent of the instrument appears to be, thattheone covenant is merely auxiliary to the other; one referring to the title, and the other to the enjoyment of that title. A breach of the latter involves a breach of the former. It would seem to be unreasonable, that a purchaser should recover upon the covenant of seisin the full value of the estate, and also additional damages for being disturbed in the enjoyment of that estate. There are no precedents at Common Law for the recovery of more damages in the covenant for quiet enjoyment, than under a covenant of seisin. The covenant of seisin draws after it, the covenant for quiet enjoyment. “ Omnemajus contmet in se minus.”
I say, however, that to my mind the rule of the Common Law is right on principle. In this contract, as in all others, the rule of construction is the intention of the parties. What is that? The grantor covenants that the grantee shall be undistuibed in his title. He undertakes that the title in the hands of the grantee is good, and will continue good. The land and its value is the subject matter of the contract. The grantor does not look beyond
On thd other hand, the purchaser takes the title for what that is worth at the time. The future appreciation, or depreciation, is a chance which he takes with it. The improvements are with him, but he has the right to ask security against the failure of the title. He may ask security in any amount; covenants of any kind; hut he asks and takes security against the failure of title alonéis is a personal security — it is available to him in money. He estimates the value of the title in the sum he agrees to pay for it; he makes, by his contract, the parchase money the measure of the value of the title, and takes security in that amount. Such seems to me to be the intention of the parties, and they ought to beheld to their contract. It is right that the vendor should pay interest, because he has had'the use of the purchaser’s money, and is presumed to have made interest; it is right that the purchaser should receive interest, for although he has had the use of the land, its rents, issues and profits, yet he is liable to refund them to him who has the paramount title. He seems to be the favored per-
The purchaser, however, cannot Mmse'lf move in a Court of Equity for such compensation; and, for the life of me, I. can see no reason why he should not. Sugden on Vendors, ch. 16, sec. 10, p. 722. 1 J. Ch. R. 385. 1 Ibid, 26, 39. Story's Com. on Eq. 799. 6 Paige, 390. I understand the technical reason why he cannot, but I see no reason why he may not, upon principle. Just such a reason, (to-wit, that the purchaser is the movant,) as precludes him from an allowance for his improvements, when there is no fraud on his part, and when he is without notice of the true owner’s title, ought to be overridden and broken down by the Courts of Chancery — Courts which are said to look to substance, and not to forms. Whether he is a complainant or defendant in Equity, his equity remains the same. I know of no principle, equal and good, which can take the money, or the value of any kind 'which belongs to A, and appropriate it to B. It would seem to be just that the legal title of the true owner should be held encumbered with the equity of the tenant, growing out of his improvements, whatever, in each case, they might be proven tqbe. The rule ofiihe Common Law, as to damages, is said to operate with great severity upon purchasers, where the vendor has acted in bad faith, as where he has either fraudulently withheld the truth, or suggested falsehood in relation to the title. But for this, it may be replied, the grantee may have an action on the case, in the nature of a writ of deceit and recover to the full extent of his loss. Cruise, tit. 38, c. 5, s. 57. 1 Inst. 384, a. m. 1. 2 Caines, 193. 1 Fonbl. Eq. 366. 1 Com. Dig. 236, a. 8. Van Ness, J. in Pitcher vs. Livingston. 4 John. R. 12.
In the United States, the weight of authority is in favor of the rule as enforced at Common Law. See Staats vs. the Exrs. of
iitTlie circuit Judge held, that judgments obtained against the administrator, Flewellen, had no preference in the distribution of the assets among creditors, over debts of the same or higher grade, not in judgment. At Common Law, a creditor who sues and reduces his debt to judgment, has preference over debts of the same dignity, not in judgment, but no preference over debts of higher dignity, not in judgment. To the extent of a preference over debts of equal dignity with that upon which his judgment is founded, the diligence of the judgment creditor alters the course of administration, and no farther. Ashley vs. Peacock, 3 Atk. 308. Wentworth's Office of Executors, 14 Edition, page 270. 1 Williams’ Exrs. 729. Wootering vs. Stewart, et al. 2 Yeates, 483, Scott vs. Ramsay, 1 Binn. 221. Prevost vs. Nichols, 4 Yeates, 479.
Our Statute expressly precludes any preference between debts of equal dignity, where there is a deficiency of assets, “ except in cases of judgments, mortgages that shall be recorded, from the time of recording, and executions lodged in the sheriff’s office, the eldest of which shall be first paid, or in those cases where a «editor shall, have a lien on any part of the estate.” Prince, 229. By which we understand that liens, by judgment, mortgage, or otherwise, against the estate, shall be respected according to their dates. These exceptions apply to liens only, existing at the death of the testator or intestate.
The counsel for the creditors who obtained judgment against the administrator, maintained in the Court below, and insisted before this Court, that the administrator, having failed to plead in defence of their actions against him, the claim of the Lanevs, founded on their covenant of warranty, if by now letting in their claim to share in the assets of the estate, their judgments are not fully paid, the administrator should be held personally liable for the deficit. They asked the circuit Judge so to charge, which he declined to do. The evidence on the record does not show that the administrator had notice of any defect in the title to the lands sold by his intestate to Laney, at the time these judgments were rendered against him ; and it does show that the breach of the warranty by eviction, occurred after the judgments were rendered. As between creditors, we have seen the effect of these judgments. The assets being in the hands of a Court of Chancery, for distribution, it was competent for that Court to let in the claim for damages founded on a broken covenant, according to the dignity of tint debt, as fixed by law. But this does not relieve the administrator from any personal liability which has attached to him by reason of a failure to plead, or of a defective plea.
• Upon that payment Harris was entitled to a deed for the land, and now in Chancery, upon all the facts of this case, must be considered as acquitted from all obligations growing out of the contract of sale. The verbal agreement could not re-invest Smith with the rights which he originally held under the contract' of sale. That is an independent transaction. He could not discharge and re-affirm that contract at the same time. Perhaps, if the land had not been at the time sold to Laney, with the knowledge of Smith, or if Smith had not elected to pursue his legal rights against the land, we might consider the equities between Smith and the estate of Harris, as different from what we now consider
But let it be conceded that the verbal agreement, to-wit, that if Smith as surety had the debt to pay, the original consideration money, to that amount, is to be considered as due, is operative on this case, then how standthe equities betweenhimself and the estate 1 What kind of case does Smith’s answer make 1 He sells land to Harris and takes his notes for the purchase money, binding himself in a bond, to make titles when the purchase money is paid. One half the money he has collected. He enters into an agreement with Harris, by virtue of which Harris is to take up his notes to Hays for the amount, say of the other half, with his own note, he, Smith, becoming his surety, with a farther understanding, that if he pays it as surety, the purchase money is then to be considered as due and owing. He pays as surety. At the time of this arrangement the land was sold under covenant of warranty to Laney, and this sale was known to Smith. Electing to seek payment of this purchase money, by resorting to his legal title, and thus, as we hold, rescinding his contract of sale to Harris, he brings ejectment for the land against Laney, the assignee of Harris, and recovers it, and now holds it. By this eviction there is a breach of Harris’ covenant to Laney, and by the voluntary act of Smith, his, Laney’s, claim for damages is brought down upon the estate; which claim this Court is compelled to allow. And now,- in a Court of Chancery, having received in cash one half his purchase money; having recovered, and now holding the entire tract of land; having voluntarily resorted to his security in the land for the balance of his purchase money, and thereby caused a breach of the covenant to Laney, and charged Harris’ estate with the value of the land and interest at the time of the sale— he asks that, in addition to all this, he shall be paid the balance of the purchase money. The equities are against him.
The estate of Harris, if his claim is allowed, would lose the land and all the purchase money. As Chancellors, we are constrained to hold him to his election. He has elected to rescind
The administrator, Flewellen, was notified by the Laneys to appear and defend the suit for the land, brought by Smith, in the State of Alabama. He did not appearand defend, as required by the notice. The Court was requested to charge, that in disregarding this notice he was not guilty of a devastavit, because he could not, in his character as administrator, derived from the-authorities of Georgia, become a party to a suit in Alabama. And farther, that in as much as he could not defend the action of' ejectment in Alabama, the recovery of this land there, was no-breach of the warranty of Harris to Lanoy. The inference-which counsel sought to draw from these two propositions was,, that the Laneys were not entitled to share, upon the covenant to-Noah Laney, in the assets in the hands of the administrator. The-Court declined to charge as requested, no doubt considering that the point aimed at was covered in his instruction already given, that, if there was a breach of that covenant, they should be let; in to the distribution. Upon this refusal, however, error is assigned, and it becomes necessary for us to express an opinion-upon both the propositions.
An eviction procured by fraudulent consent, is no breach of a covenant of warranty of title.
Let the case be remanded, with instructions,