54 N.H. 578 | N.H. | 1874
When the action of covenant is founded on privity of contract between the parties, their executors or administrators, it is transitory, and may be sued as a transitory action; but when it is founded on privity of estate, the action is then local, and must be sued in the county where the land lies. Parsons, C. J., in Lienow v. Ellis,
Applying this well-settled rule of the common law to the present case, it is very clear the action is not local. The suit is between the original parties to the deed. The covenantor and covenantee are both before the court, and the question is, Has there been a breach of the contract, made by these very parties, and embodied in the covenants of the deed ? The action is, therefore, founded on privity of contract, and it makes no difference whether the covenants alleged to be broken are such as run with the land or not. With respect to such covenants as run with the land, there may be privity of estate between the grantor and grantee as well as privity of contract, but that fact is quite immaterial here, inasmuch as there has been no conveyance of the land, and consequently no assignment of the covenants contained in the deed.
The defendant also contends that he is not personally bound by the covenants in this deed, because in making them he was acting in the representative capacity of guardian; that all he could do was to convey the right and title of his ward; that the covenants in the deed, so far as regards himself, must have been understood by the parties to mean nothing more than an undertaking that his acts had been legal, so as to make a valid transfer simply of the title of his ward; and that the breach constituted a claim against the estate of the ward, which ought to have been presented and considered on the settlement of his guardianship account.
We think this position cannot be sustained. In the first place, the covenants relate to a lot of land, included in the deed by mistake, to which the ward had no title. The guardian certainly had no authority, derived from his office and trust, to enter into covenants respecting that lot on behalf of his ward, and for that reason no such covenants would be binding on the ward or his estate.
But whenever a man by an instrument under seal undertakes to stipulate for another, if he acts without authority or beyond his authority, he is answerable personally for the non-performance of the contract. Sumner v. Williams, 6 Mass. 162, 209; and see cases referred to in note to Thomson v. Davenport, 2 Sm. Ld. Cas. (6th Am. ed.) 416, et seq.
This seems to furnish one complete answer to the defendant’s claim. But another is found in the form of the covenant. The defendant explicitly covenants for himself as well as for his ward. It may have been upon the faitli of that personal covenant that the plaintiffs paid the purchase-money for the land without first ascertaining whether the title to all the lots was in Morris Clark, 2d.
However that may be, it is clear the defendant lias used apt and fitting words to bind liimself, whether the estate of his ward could have been held or not; and that the court cannot by any stretch of construction relieve him from the obligation he thus voluntarily assumed.
According to the provisions of the agreed case, there must be
Judgment for the plaintiffs.
