88 Ga. 675 | Ga. | 1892
When this case was decided the syllabus was formulated by the court, handed down and filed. Since then an argument in elucidation and support of the decision has been prepared at my request by A. H. Davis, Esq., one of our official stenographers. In studying and revising his argument, I have examined every authority to which it refers. My associates, after hearing it read, concur with me in adopting it as the opinion of the court. We do not merely recite it, but make it our own. Eor this reason, quotation marks are omitted.
This is an action on a note given for the purchase money of a large number of lots of land. The plea sets up : (1) Damages by a breach of the plaintiff’s covenant that the title to the land was in him, and of
“This indenture . . between John S. Martin . . Andrew J. Miller . . Cornelia V. Miller the wife of the said Andrew J. Miller . . Sarah E. Miller and E. M. Miller, by their guardian ad litem Andrew J. Miller, as parties of the first part, and John J. Mc-Donough and Tiney B. Thompson . . and Edward Burdett . . copartners, composing the firm of Mc-Donough & Co. . . as parties of the second part, witnesseth that, whereas the title to certain lands, hereinafter mentioned as described, is in the said John S. Martin,... as evidenced by a certain deed of conveyance made by Henry Gallagher,assignee in bankruptcy of A.. J. Miller, . . to said Martin . . and whereas certain portions of the lands described were . . set apart to said Andrew J. Miller as the head of a family, as a homestead, . . and whereas, under a proceeding had before the . . judge of the superior court of Pierce county, certain orders were passed . . authorizing a private sale of the homestead property, in which proceeding all the. parties at interest were duly represented . . .
“Said parties of the first part . . have granted, bargained, sold, remised, conveyed, released and quit-claimed, and by these presents do grant, bargain, sell, remise, convey, release and forever quitclaim unto said parties of the second part, in their full possession and seizin, and to their heirs and assigns, the following lots of land, and all the estate, right, title, interest, use, trust, property, claim and demand whatsoever, both at law and in equity, of said parties of the first part of, in, to or out of all those lots, tracts or parcels of land,” etc.
“To have and to hold the said conveyed and released premises unto said parties of the second part, their heirs and assigns, to their only proper use, benefit and be-
The subject here conveyed is described as “the following lots of land and all the estate, right, title, interest, etc., of the parties of the first part.” The deed uses appropriate words of release and quitclaim, and lacks the usual covenant of general warranty, which, by the code, §2703, includes covenants of a right to sell, of quiet enjoyment and of freedom from encumbrances. There are no formal covenants at all, except the one against any title, claim, etc., under the parties making the deed.
Covenants are of two kinds, express and implied. Express are those stated in words more or less distinctly exposing the intent to covenant, and implied are those inferred by legal construction from the use of certain words of conveyance. The plea makes it necessary to determine whether this deed contains a covenant of either sort. It is insisted that the recital that the title was in the plaintiff, as evidenced by a certain deed, amounts to a covenant of title, though infox’mally expressed. A covenant requires no special form, but if it is cleax’ly the intexxtion of the grantor to answer for the txuxth of a statemexxt in the instrument, this will constitute a covenant on his part. There is authority hold
Furthermore, if the conveyance is only of the grantor’s right, title and interest in the land, the ‘scope of it is not enlarged by a general covenant, but such covenant must be limited to fit the subject conveyed. 1 Warvelle on Vendors, 421 (§8); Allen v. Holton, 20 Pick. 458; Sweet v. Brown, 12 Met. 175; McNear v. McComber, 18 Iowa, 12; Gee v. Moore, 14 Cal. 472;
Is any covenant implied in these words : “Said parties of the first part . . do grant, bargain, sell, remise, convey, release and forever quitclaim unto said parties of the second part, in their full possession and seizin . . the following lots of land, and all the estate, right, title, etc., of said parties of the first part,” etc. ? At common law certain words of conveyance imported covenants of title, and so strong was the implication it was in some cases held that an express limited covenant could not repel it. It seems now generally agreed that, in conveyances of freehold, only one word “do” or “dedi ,” “I give” or “have given,” had such potent effect. Rawle, §270; Frost v. Raymond, 2 Caines, 188, 2 Am. Dec. 228. The word “grant” did not imply a covenant. Platt, Cov. 47, 48. Nor did “grant, bargain and sell.” Rickets v. Dickens, 1 Murph. (N. C.) 343; Frost v. Raymond, supra. And it has been held that, in a conveyance merely of the grantor’s rights in*the land, even the terrible word “dedi” would not raise a wai’ranty. Deakins v. Hollis, 7 Gill & J. 311. Also it is said that, in a deed of “grant, bargain and sell,” -an express covenant takes away all implied covenants. Vanderkarr v. Vanderkarr, 11 Johns. 122.
When conveyances came to be made under the statute of uses, the courts did not raise covenants by implication. The deed of bargain and sale came into use under this statute, and it being the deed commonly employed in the United States, as a general rule, in the absence of statute, there are no implied covenants with us. Tiedemann on Real Prop. §859; 3 Washb. Real Prop. *671; Walker’s Am. Law, p. 454 (9th ed.); Allen v. Sayward, 5 Me. 227. In some of the States, by
Hpon the whole, then, it appears that the deed contains no covenant except the special one above alluded to. Does the loss of either of the two lots come within its terms? It is not disputed that the title to lot 104 was once in A. J. Miller, one of the grantors, and was divested by sheriff’s sale under an execution against A. J. Miller & Son, five years and more before the deed to defendant was made. The sheriff’s deed was duly recorded, and this record was constructive notice to the defendants. Their plea is based, not on fraud, misrepresentation or breach of confidence, but solely on breach of covenant. The loss of this lot does not fall within the latter part of the special covenant, because the title or claim under the sheriff’s sale was not set up by any of the grantors but by a stranger. Nor does it come within the first part of that covenant, because that provides against
Now are the defendants entitled to set up as a defence to the notes sued on that they lost the said two lots? This depends upon who took the risk of the title’s being good. The grantors, both in the negotiations and in their deed, expressly declined that risk; consequently the purchasers assumed it. The law is clear that, where the buyer takes a quitclaim deed, that is a deed without
The foregoing discussion disposes of this litigation upon its substantial merits, and though various grounds are stated in the motion for a new trial, they are all controlled as to the result hy what has been said. The court did not err in overruling the motion.
Judgment affirmed.