2 Johns. 1 | N.Y. Sup. Ct. | 1806
The plaintiffs’ right to judgment, must
It is objected that the plaintiffs cannot recover on the covenants of seisin, and that the grantor had power to convey, because it is alleged in the declaration, that there was a total defect of title in the defendant, at the time he executed the deed, and that the covenants then broken could not be assigned over by the first grantee. There is great force in this objection, and it appears to me conclusive. Ckoses in action are incapable of assignment at the common law; and what can distinguish these covenants, broken the instant they were made, from an ordinary chose in action ? The covenants, it is true, are such as run with the land, but here the substratum fails, for there was no land whereof the defendant was seised, and, of consequence, none that he could aliene; the covenants are, therefore, naked ones, uncoupled with a right to the soil. This point was determined in the case of Lewis v. Ridge.
I am, therefore, of opinion, that the defendant must have judgment.
I cannot assent to this opinion. One of the covenants declared on, is that of a seisin in fee of the grantor. ' It since appearing, that he was not thus seised, and, of course, that this covenant was broken immediately, on executing the conveyance, it is now said that it could not be transferred, so as to entitle the assignee to an action for the breach of it.
One would naturally suppose, that every covenant in a deed, conveying an estate of inheritance, would pass with the land, and confer on the owner, however remote from a former grantor, a remedy for an unsatisfied violation of any of them, without inquiring when the right of action first accrued. They all extend, by express terms, as well to assigns ad infinitum, as to the first grantee. It comports, then, with the contract, and is in itself reasonable, that they should all form a part of every grantee’s security; nor can it be right, that those who come in under this covenant, which may be the only one in a conveyance, shall not be able to recover any part of a large consideration, merely because an alienation intervened, prior to a discovery of any defect of title. By this means a most useful covenant, and in daily use, will become a dead letter, before it can be enforced, ás, very often, repeated sales take place, before a title is discovered to be bad. We are,, however, told, that such is ^aVV’ an<^ arC re^errot^t0 some authorities. Between the case of Lewis v. Ridge
But this is not the ground on which I rest; it is that of the contract itself, by the words of which all the covenants passed to every grantee ad infinitum, and gave him, of course, an action in his own name, .against any preceding grantor, whether a breach happened before or after the assignment, provided no satisfaction has been obtained for it in another name. Nor is it without authority that this ground is taken; for in the case of Spencer,
I concur in the opinion delivered, as to the mode of stating an eviction, in which respect the declaration is imperfect $ but the breach of the covenant of seisin being Well assigned, the plaintiff, in my opinion, is entitled to judgment.
Judgment for the defendant.
3 Term, 587. Woodfall 232.Esp.Dig. 273, 4. Wotton v. Hill, 2 Saund. 177. and Wms. notes, 8 & 10.
Cro. Elis. 863.
The same rule is laid down by Comyn's Digest, tit. Covenant, B. 3.
The eviction which will entitle a grantee to recover on co-Tenants of warranty, need not be by judgment of law.—Hamilton, v. Cults, et. al., 4. Mass. T. R. 349.
Cro. Eliz. 363.
Bos. and Pull. Rep. vol. 1 p. 158.
5 Co. 17.
In 5 Cowen’s Rep. i3'7. it is decided, where A. giants toB. who grants to C. both grants being with warranty, then C. is evicted by a title paramount to A*s title, that C. may bring covenant directly againsi A., or be may sue B., who otl paying, &c. may sue A. and so of any successive number of warrantors. In this case, however, it was alleged that the covenant remained unbroken, until after the assignment to the plaintiff, though the declaration stated that the plaintiff was evicted by certain persons having lawful title before the defendant cenveyed to the original grantor.