Deason v. Findley, 40 So. 220

Deason v. Findley

40 So. 220 | Ala. | 1906

ANDERSON, J.

The complainant relies on a breach of covenant of warranty or quiet enjoyment, and not a covenant of seisin. Covenant of quiet enjoyment and of warranty runs with the land into the hands of the assignee and heirs, and may be sued upon by the heir or assignee who is in possession when the breach occurs. “But, in order that a'covenant may run with the land to assignees, the grantee must by the conveyance acquire the actual or constructive seisin.” — Tiedman on Real Property, § § 855, 860. It is not sufficient that the covenant is concerning land, but to make it run with the land there must be a priviity of estate between the covenanting parties, and the covenant must have relation to an interest created or conveyed, in order that the covenant may pass to the grantee. — 8 Am. & Eng. Ency. Law, 147 ; Web v. Russell, (England) 3 T. R. 393. in order to entitle one to recover on a covenant of warranty of a remote vendor, the plaintiff must show that he holds title by privity with the immediate covenantor of such remote vendor. — 5 Ency. PL & Pr. 357, and note; Pool v. Morris, 74 Am. Dec. 68 ; Mygatt v. Coe, (N. Y.) 26 N. E. 611, 11 L. R. A. 646 ; Beardsley v. Knight, 4 Vt. 471.

The complainant in the case at bar has shown no privity of estate with Wm. Robertson, the covenantee of the grantor or warrantor, Murchison Findley. There is nothing to connect her with Elbert Robertson, the second grantee; she claiming under John C. Moore, who received no conveyance from any one holding under Wm. Robertson, the original covenantee of Murchison Findley. The complainant’s contention that the possession of herself and those claiming under John C. Moore has been of such duration that the law presumes a conveyance from Elbert Robertson to said Moore, if *409correct, cannot enable her to recover for a breach as against Findley. In the case of Beardsley v. Knight, supra, the Vermont court said: “The argument that the plaintiff was in possession, and therefore might avail himself of the covenant as running with the land, is wholly destitute of foundation. His possession, as against Hotch, may have been adverse, so that he was acquiring a title by the statute of limitations as against him; but, if so, it would he at least singular if he could acquire a title against Hotch by a trespass, and at the same time, by the same trespass, acquire a right to Hotch’s claim against the defendant on the covenants in his deed. Although a deed from Hotch to the plaintiff might under some circumstances be presumed, yet, as presumptions are made to quiet men in possession, I do not know that it has ever been contended before that it would create a right of action on the deed presumed. A deed might be presumed to give a legal origin to possession; but an instrument not under seal cannot be presumed to be a deed for the purpose of giving one an action of covenant thereon, or an action of covenant on a deed further back in the chain of title.”

The decree of the chancellor is affirmed.

Tyson, Dowell, and Simpson, JJ., concur.