Oliver v. Bush, 125 Ala. 534

Oliver v. Bush

125 Ala. 534 | Ala. | 1899

McCLELLAN, C. J.

T. G. Bush and others sold and conveyed a tract of land to R. P. and W. S. Oliver and their heirs and assigns forever. The deed contained the following covenant: “And the said parties of the first part, for themselves and their heirs, the above described and hereby granted and released premises and every part and parcel thereof, with the hereditamentts and appurtenances unto the said parties of the second paid, their heirs and assigns, against the said parties of the first part and......heirs, and against all and every person and persons whomsoeA''er lawfully ’Claiming or to claim the same, shall and Avill warrant, and by these presents, forever defend.” According to the averments of the complaint, it transpired that the grantors in this deed did not have a fee in said lands, but only an estate for the lives of two third persons. The grantees went into! possession of the lands and have so remained. They now bring this action against said Bush for a breach of said Covenant AVarranting title. The trial court ruled against, their right of action on the ground that the plaintiffs Ayere still in the enjoyment and possession of the land conveyed not having suffered any actual or 'constructive eAdction. The necessity for eviction, actual or constructive, as a condition precedent to a right of recovery for a breach of the coA^enant is not questioned, but fully recognized by the appellantsbut their contention is that an outstanding, paramount title in remainder is a constructive eAdction which Avill perfect the right of action in grantees to Avhom the fee has been in terms conveyed and warranted. The position is untenable. There is on these facts no eAdction, actual or constructive. To be eviction at all, actual or constructive, there must be a disturbance of the covenantee’s possession and enjoyment under the covenant. If there is at the time of the conveyance paramount outstanding title and possession under it, and in consequence the grantee does not enter into possession, this is a constructive eviction, though he has never been ousted and there has been, and could he in the nature of things, no technical eviction. If the grantee goes into possession and is forced by the hostile and impending assertion of paramount right to buy in *537the oustanding title or to take a lease under it in order to protect his possession, this is a constructive eviction, though he has in point of fact not been dispossessed at all. And there are divers other categories of fact upon which a constructive eviction may be affirmed,, though there has been no actual ouster; but they all involve a disturbance of the grantee’s enjoyment and possession under the covenant, and where there has been no such disturbance, no sort of infirmity of the title-intended to be and nominally passed by the deed, whether it be the entire want of title in the grantor or a less title than the fee purported to be conveyed, as,, for instance, a life estate only, or -what not, the covenantee cannot maintain an action counting upon the-breach of this covenant. It is in substance and effect the same as a covenant for possession -and quiet enjoyment, and it is not broken so long as -such possession and enjoyment is not.interfered with. — 8 Am. & Eng. Encyc. of Law, pp. 97 ct. seq.; Thomas v. St. Paul’s Church, 86 Ala. 138, 144; Anderson v. Knox, 20 Ala. 156; Caldwell v. Kirkpatrick, 6 Ala. 60; Griffin v. Reynolds, 17 Ala. 198; Copeland v. McAdory, 100 Ala. 553; Davenport v. Bartlett, 9 Ala. 177; Dupuy v. Roebuck, 7 Ala. 488; Wilder v. Ireland, 53 N. C. 87.

Conceding without deciding that by force of the statute (Code, § 1035), the deed to plaintiffs is to be held to contain a covenant of seizin resulting from the use of the words, “grant,” “bargain,”' “sell,” “or either of them,” they are in no better plight. In the first place, the outstanding title in remainder is not covenanted against, since its creation was not the act nor its existence the sufferance of the grantors or their heirs.— Heflin v. Phillips, 96 Ala. 561. In the next place, no-count of the complaint goes solely upon a breach of the covenant of seizin; but, to the contrary, -the second and third counts are solely upon the warranty of title expressed in the deed, -and the first count is -upon both this warranty and the supposed statutory covenant of seizin, jointly. Of course, under this count, there could be no recovery unless a breach of both and each of these covenants be shown.

Let the judgment of the circuit court be affirmed.