57 Tenn. 384 | Tenn. | 1873
delivered the opinion of the court.
This" suit is brought to recover damages for breach
The breaches assigned are of the covenants of seizin, of warranty, of right to sell, and that the property was free from all encumbrances, and the fact of the existence of this lien of Norton’s vendor at the time of making the covenant, and its enforcement are alleged as the circumstances constituting these breaches.
This declaration was demurred to and the demurrer sustained by the court below, and plaintiff appealed in error to this court. Four grounds of demurrer are assigned.
The second and fourth grounds of demurrer have
The first is: That there was no privity of contract between plaintiff and Norton, setting out the facts in short, and raising the question of the plaintiffs’ right to sue on the covenants in the deed from Norton to Hubbard, the trustee.
It has been settled in this State since the. case of Hopkins v. Lane, 9 Yer., 78, that the covenant of warranty runs with the land, and that when one purchases land and receives a conveyance for the same he thereby becomes assignee by virtue of the conveyance merely of the warranty for title contained in the deed to his vendor, and that he may sue for breach thereof, whether made to such previous vendor and assigns or not, that as the covenant^ relates to the land, he only who is owner of the land at the time of the breach can take advantage of it. That is to say, in the language of Mr. Bawle in his work on “ Covenants for Title,” 335: “ The owner of the land for the time-being is entitled to the benefit of all the warranties and covenants which the prior owner in the claim of title may have given,” and as to covenant of warranty, quiet enjoyment, and further assurance, all of which are held to run with the’ land, they pass to the purchaser whether the sale be by voluntary or involuntary sale, as in the case of a sheriff’s sale of a debtor’s estate. See Rawle on covenants, 352 and note 2, with cases there cited.
As to the covenants for seizin, against encumbrances and of right to convey, it seems to be settled in the
The discharge of an incumbrance fastened upon the land, was stated as the rule in Stipe v. Stipe, 2 Head, 171, to be an eviction pro tanto, though the question was not definitely settled in that case. That principle has been decided in unreported cases by us, and we think the principle sound.'* It must, as a matter of course, be a valid, subsisting encumbrance fixed on the land, and one which the party would be compelled, either to discharge or have enforced against the land, and which was paramount to his own title, and by law would override it.
We therefore hold, that as to the breach of the covenant of general warranty, plaintiff was entitled to recover on the facts- stated in his declaration, notwithstanding the objections taken in the demurrer.
To this extent the demurrer was improperly sustained. It is proper to add, that while the facts stated in the declaration of payment and discharge of the incumbrance, make out a case of eviction to the extent of the sum paid, yet in the formal statement
Reverse the case, and remand to be further proceeded in.