50 Ind. App. 359 | Ind. Ct. App. | 1912
— This action was commenced in the Pike Circuit Court, and on change of venue was sent to the Dubois Circuit Court. A demurrer for want of facts was sustained to appellees’ second and third paragraphs of answer, and carried back and sustained to the complaint. Appellants refusing to plead further, judgment was rendered against them, and in favor of appellees.
The only error assigned is based on the action of the court in carrying back and sustaining to the complaint appellants’ demurrer for want of facts to appellees’ second and third paragraphs of answer.
Briefly, the facts sufficient to present the question here to be decided may be stated as follows: On March 14, 1906, appellees and Oliver Dedman conveyed certain real estate in Pike county, Indiana, by statutory warranty deed to appel
This being an action for damages for breach of covenant against incumbrances, the question for decision is, Shall that covenant in the deed be construed as joint or several ?
The quoted provision of the statute is covered by the words “convey and warrant,” and must.be read into the deed as if written therein at full length. Jackson v. Green (1887), 112 Ind. 341, 14 N. E. 89; Dehority v. Wright (1885), 101 Ind. 382; Worley v. Hineman (1893), 6 Ind. App. 240, 33 N. E. 260. The deed contains no special provisions on the part of any of the grantors limiting the broad scope of the
Appellees earnestly insist that the complaint is insufficient, for the reason that it fails to allege that the grantors intended to warrant more than their individual interest, and that it fails to show a consideration for one cotenant to warrant the title of the other.
As applicable to the facts in this case, Rawle, Covenants (5th ed.) §304, states the law as follows: “Whether the liability created by covenants for title be joint, or several, or joint and several, obviously depends upon the terms in which they are expressed. Where an obligation is created by two or more, the general presumption is that it is joint, and words of severance are required in order to confine the liability of the covenantor to his own acts. ’ ’ In support of this proposition the author cites Touchstone, 375; Carleton v. Tyler (1839), 16 Me. 392, 33 Am. Dec. 673; Donahoe v. Emery (1845), 9 Met. (Mass.) 63, 67; Platt, Covenants 117; Comings v. Little (1837), 24 Pick. 266; Click v. Green & Sadler (1883), 77 Va. 827. See, also, City of Philadelphia v. Reeves (1865), 48 Pa. St. 472; Ashburn v. Watson (1911), 8 Ga. App. 566, 70 S. E. 19.
Judgment reversed, with instructions to overrule the demurrer to each paragraph of the complaint, and for further proceedings not inconsistent with this opinion.
Note. — Reported in 98 N. E. 367. See, also, under (1) 38 Cyc. 4; (2, 5) 13 Cyc. 601; (3) 38 Cyc. 14; (4) 38 Cyc. 101, 112; (6) 13 Cyc. 604; (7) 11 Cyc. 1055. As to the control of apparent interest in construing a deed, see 31 Am. St. 26.