Griffin v. Fairbrother

10 Me. 91 | Me. | 1833

Mellen C. J.

deeds of conveyance most frequently in use, generally contain three covenants, 1. a covenant of seisin, and good right to sell and, convey, which amount to the same thing. 2. A covenant of freedom from incumbrances. 3. A covenant of general or special warranty. A seisin in fact will suppoit the first, though not a. lawful one ; but whenever it is broken, it is broken the moment it is made. The second may be broken when the first is not. The third is a covenant which runs with the land, and he in whose time it is broken, whether the grantee or any one who claims and holds under him, may maintain an action for the breach. In the case before us the covenant in Griffin’s deed, and as alleged in the declaration, is a covenant of special warranty and the breach assigned is, that Griffin had no right to sell and convey the premises in manner and form as set forth in the deed abovementioned. The defendant never covenanted that he had good right to sell and convey the premises. Here is no breach assigned, except of a non-existing covenant; and, thus on the face of the declaration no cause of action appears; and should a judgment be entered on the verdict, it would be reversible on error, inasmuch as no breach of the special warranty is alleged in any form. We might stop here, and grant a new trial; but as an amendment of the declaration might lead to further delay and expense, we will go on, and observe, that on the report of the Judge it appears, that the defendant’s covenant was not broken until after the plaintiff made his conveyance to Chase on the 8th of March, 1831; for it appears that in April following Long stated that he was going — wanted his notes and would give up the land; but that since that time he had continued in possession and for-hidden the plaintiff to enter. On these facts, and those stated in respect to Long’s mortgage to Griffin, he, as mortgagee, had an’undoubted right to convey his right, that is, to assign the mortgage to the plaintiff, though Long was in possession; and for the same reason the deed of the plaintiff to Chase operated as an assignment of the mortgage, or all the plaintiff’s right to Chase; and if the acts of Long, since that time, amount to a breach of the defendant’s covenant of special warranty, the action should have been brought by Chase, as the covenant of Griffin ran with the land to him. It is said this action is instituted and pursued for the benefit of Chase; that may be ; but this does not alter the case : Chase should have been the plaintiff on record, had a proper breach been assigned ; — and an amendment in this respect cannot aid the plaintiff. In addition to all this, the verdict has placed the plaintiff before us in this action as engaged in a collusive transaction for the express purpose of defrauding the defendant. For some reason, which seems not to have been sufficiently examined at the trial, the instruction was given to the jury to find a verdict for nominal damages. We .are now all satisfied that this was incorrect. In every view of the cause we are satisfied the verdict is wrong, and that on the facts before us the action cannot be maintained.

Verdict set aside and a new trial granted.