Greenwood v. RobbinsGreenwood v. Robbins
The decree against which relief is sought is a decree of foreclosure of a purchase-money mortgage. The conveyance was made by complainant to one Sager and contained a covenant of general warranty of title; the mortgage was made by Sager to complainant; petitioners Robbins and Edelman purchased subject to the mortgage and defended the foreclosure suit. One of the defenses made was that a portion of the land conveyed was tidal land; abatement from the amount due was sought as damages for breach of the covenant of general warranty.
Testimony was introduced by defendants to the effect that portions of the lands conveyed were overflowed by tides; if at mean high tide that was true, the situation presented was a title in defendants to high-water mark, and title in the state to the tidal lands below that boundary. But the evidence further disclosed that defendants were in possession and no claim was made that their possession or right of possession had been disturbed or threatened in any way. Accordingly, it was held that no eviction, either actual or constructive, had been shown to support an action on the covenant of warranty. Kellog v. Platt, 33 N.J. Law 328, was deemed conclusive to that effect. No suggestion was made to the court that the doctrine of constructive eviction could be extended to a case in which the possession of the covenantee, or his grantee, had neither been challenged nor relinquished. (See reported opinion, on which the decree was founded, in Greenwood v. Robbins, 107 N.J. Eq. 153.)
It is now urged by the petitioners, in support of the petition, that a “constructive eviction” should be found to exist from the single circumstance, standing wholly alone, that title to the tidal land was in the state, notwithstanding defendants were in peaceable possession with their possession
“It must not be supposed, however, that the existence of paramount title, and the acquisition of it by the covenantee by purchase, of his mere volition, will amount to a constructive eviction sufficient to support an action on the covenant of warranty. To adopt such a principle would be to confound a covenant of warranty with covenants for seizin or against encumbrances, and to disregard the distinction which gives to the former its negotiable quality as an incident of the inheritance, and maintains it as a covenant unbroken, and therefore excludes it from the rule of the common law, that a chose in action is incapable of assignment. To preserve the quality of transmissibility in covenants of warranty, the obligation must be prospective to be incurred by some act
done under the adverse title hostile to the title under which the covenantee holds, either by entry or the bringing of the suit — or at least by its assertion in some way, under such circumstances as shall induce a well-founded belief that it will be enforced, under the menace of which the covenantee honestly yields, and he may be said to have suffered an involuntary loss of the possession under his defective title. When a paramount title is asserted by such acts, or under the circumstances mentioned, a constructive eviction takes place, and the covenantee may abandon the possession, or purchase in the adverse title and retain his remedy upon the covenant of warranty.”
In Rawle on Covenants (5th ed., § 150), this doctrine is expressed as follows:
“But under the covenant of warranty, as usually expressed, it must not be supposed that a purchaser can, as a general rule, buy in any paramount claim, and elect to consider himself evicted to the extent of the purchase-money of such claim. However far the doctrine of constructive eviction has been carried, it is believed to be still absolutely necessary that the adverse claim should have been hostilely asserted.”
In support of the petition now presented the claim is now made, for the first time, that where the paramount title is found to be in the state, the limitation of the doctrine of constructive eviction, as defined in Kellog v. Platt, should be held to be inapplicable, and a constructive eviction by title paramount should be deemed to have arisen; this contention is made notwithstanding the fact that the grantees of the covenantee are in peaceable and undisturbed possession, and have not been impelled to acquire title from the state and the rights of the state have not been asserted or threatened, and no well-founded belief can be said to exist that such rights will be presently asserted or enforced.
In this contention petitioners rely upon a number of cases which have arisen in our western states in which the public lands of the states and the United States are open for homestead settlement and pre-emption. In these states the recognized policy is the encouragement of settlers on the land and the public lands are held and disposed of for that purpose.
The case of West Coast Manufacturing and Investment Co. v. West Coast Improvement Co. (Wash.), 66 Pac. Rep. 97, has been cited in behalf of petitioners as analagous because the covenant therein embraced tidal lands owned by the state. In that case the state had demanded of the covenantee possession of the part of the tidal land occupied by the covenantee, and had threatened suit in case its demand was refused; the covenantee thereupon purchased from the state and brought suit on the covenant of warranty of title. That situation presented a typical case of constructive eviction, and the purchase price paid by the covenantee to the state afforded a stable and accurate measure of the damages suffered by the covenantee.
I am impressed that no justification is to be found for ignoring the specific limitations of the doctrine of constructive eviction as clearly defined by our supreme court in Kellog v. Platt, supra; to do so is to confuse the offices of covenants of seizin and covenants of warranty. Petitioners brought no action on the covenant prior to the foreclosure decree, and failed in the foreclosure suit to establish facts constituting a constructive eviction; no new matters have since transpired; the action on the covenant, which has since been brought in Pennsylvania, should not deter the enforcement of the foreclosure decree.
I have herein regarded the covenant as embracing the tidal lands. In Cooper v. Bloodgood, 32 N.J. Eq. 209, Chancellor Runyon expressed a doubt whether a covenant of warranty of title, in a deed of conveyance with boundaries extending to low-water mark, should be deemed as intended by the parties to include the territory which was obviously tidal lands. See, also, Boon v. Kent, 42 N.J. Eq. 131.
Complainant forcefully urges laches upon the part of petitioners which should be operative to deny the relief now sought. The views herein expressed render a consideration of that claim unnecessary.