Piper v. Union Pacific Railway Co.

14 Kan. 568 | Kan. | 1875

The opinion of the court was delivered by

Valentine, J.:

Upon no theory can this action for damages be maintained. If said judgment upon which the action is founded be considered as creating an estate upon condition in favor of the railway company, and not as creating an obligation in the nature of a covenant, then the action, in whose-soever name it might be brought, should be for the recovery of the strip of land, and not for the recovery of damages. But if we consider such judgment as creating an obligation on the part of the railway company to make said improvements, in the nature of a covenant, then the action is certainly not commenced by the proper person. The judgment, so far as it imposes any obligation upon the railway company, is in its terms purely a personal judgment in favor of Alice Broome, and in favor of her alone. It does not purport to be in favor of her assigns, and the judgment has never been in fact assigned. And the mere sale and conveyance of the land mentioned in the judgment cannot work an assignment of the judgment. If we consider the obligation imposed upon the railway company by the judgment merely in the nature of a covenant, and not in the nature of a condition upon the breach of which the title of the railway company to said strip of land may be forfeited, then such obligation will have no connection whatever with the title to the land, or with the possession thereof, or with any estate therein; nor will anything to be done under such obligation have anything to do with either the title, or the possession, or the estate, or indeed with anything in existence at the time said judgment was rendered, connected in any way with such estate, title or possession. The obligation was simply to create new improvements on the company’s own land, and then to keep these new improvements in repair. It has never been understood that such an obligation would run with the land. (See Spencer’s Case, 1 Smith’s Leading Cases, 115, et seq.) But even if this obligation, when first created by the judgment, was such an obligation as would run with the land, still the obligation was violated, and therefore converted into a mere personal chose in action, not assignable by a mere conveyance of the land, long before Piper obtained any interest in the land. Piper obtained his first interest in said land on July 25th, 1864, (the deed was recorded July 30th,) but all said improvements were to have been made before the first day of May of that year. And Piper did not purchase the south-half of said quarter-section till October 27th, 1865, (the deed was recorded November 25th.) Under this state of the facts Piper could not maintain any action for a breach of the said obligation. (Spencer’s Case, supra; Rawle on Covenants, 4 ed., 318 to 322, and cases there cited.) A covenant when broken becomes a personal chose in action, and never afterwards runs with the land. There is no claim that this judgment-obligation, which is in its terms personal, has any greater power to run with the land than a covenant which is usually made in express terms to the assigns of the covenantee as well as to the covenantee himself.

The judgment of the court below is affirmed.

Kingman, C. J., concurring. Brewer, J., not sitting in the case.