Lawrence v. Montgomery

37 Cal. 183 | Cal. | 1869

By the Court, Crockett, J.:

It is somewhat difficult to determine whether this action is based upon an alleged breach of the implied covenants in the deed from Evoy to Lawrence and Woodson, or upon the alleged fraudulent representations of Evoy as to the title. In one part of the complaint we find an averment “that by virtue of the covenants of said deed said Bridget M. Evoy covenanted and agreed that she had title to said premises, and the right to convey the same, and that she had not, prior thereto, conveyed the same to any person except to said plaintiff and Woodson.” In another part is an averment that Mrs. Evoy represented to Lawrence and Woodson that she was the owner of the premises described in the deed, and that, “relying solely upon the said representations,” they accepted and received the deed in part payment of an antecedent debt due to them from her, and that they afterwards discovered that she had previously sold and conveyed the premises to her daughter, and knew when she conveyed to them that she had no title; “ by means of which false and deceptive representations ” they aver that they have suffered damage in the sum of one thousand two hundred dollars, for which amount they pray judgment. If the complaint had been demurred to, on the ground that it improperly united two causes of action which could not be joined, or that it was ambiguous and uncertain, we are inclined to think the demurrer on either ground would have, been well taken. But as the demurrer does not specify either of these grounds, they must be deemed to have been waived. If it be treated as a complaint for deceit, the demurrer for a defect of parties plaintiff was well taken. The alleged deceit, if there be any, was practised on Lawrence and Woodson jointly, for which they had only a joint cause of action; and the action is not only brought in the name of Lawrence alone, but there is no averment that he has succeeded to Woodson’s right of action. The only allegation in this respect is that Woodson has “ sold, transferred and assigned to plaintiff* all his interest in said premises, acquired by said deed of conveyance from Mrs. Evoy, by a deed of conveyance duly executed and acknowledged;” but the complaint avers that Woodson acquired no title in the land, and of course could convey none to the plaintiff; and the action for deceit is a personal action, founded on fraud, and not upon any covenant in the deed running with the land.

Even though the implied covenants in the deed be as broad in their legal effect as the plaintiff claims them to be, they amount, at most, only to -a covenant that “ the "grantor has not conveyed the same real estate, or any right, title, or interest therein, to any person other than the grantee;” “and that such real estate is, at the time of the execution of such conveyance, free from incumbrances, done, made or suffered by the grantor, or any person claiming under him; and such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.” (Statutes 1855, p. 171.) But it is well settled that these are only personal covenants, and do not run with the land.

“ The covenants of seizin and of a right to convey, and that the land is free from incumbrances, are personal covenants, not running with the land, or passing to the assignee; for, if not true, there is a breach of them as soon as the deed is executed, and they become choses in action which are not technically assignable.” (4 Kent. Com. 471. To the same effect are: Clark v. Swift, 3 Met. 390; Bickford v. Page, 2 Mass. 455; Prescott v. Trueman, 4 Mass. 627: Thayer v. Clemence, 22 Pick. 493; Greeby v. Wilcocks, 2 Johns. 1; Hamilton v. Wilson, 4 Johns. 72; Kane v. Sanger, 14 Johns. 89; Chapman v. Holmes, 5 Halst. 20; Garrison v. Sandford, 7 Halst. 261; Garfield v. Williams, 2 Vt. 327; Mitchell v. Warner, 5 Conn. 497; Birney v. Hann, 3 A. K. Marsh. 324; Innes v. Agnew, 1 Ohio, 389.)

.. It follows that, whether this action be based on the alleged direct or on the implied covenants in the deed, the cause of action was personal, and does not run with the land. If there was any cause of action, it accrued to Lawrence and Woodson jointly; and the subsequent conveyance from Woodson to Lawrence of whatever interest the former had in the land, does not, of itself, entitle the latter to maintain an action in his own name, either on the direct or for a breach of the implied covenants in the deed. We do not wish to he understood as deciding whether or not the deed in question is of a character .from which such covenants would be implied; but assuming, for the purposes of the argument, that the deed is of that character, we hold that the cause of action, if any, accrued to Lawrence and Wood-son jointly, and the complaint contains no averment that Woodson has assigned to Lawrence his interest in the cause of action. The demurrer to the complaint was, therefore, properly sustained, on the ground that there was a defect of parties plaintiff. This view of the case renders it unnecessary to decide the other points raised by the demurrer.

Judgment affirmed, and remittitur ordered to issue forthwith.