17 Neb. 661 | Neb. | 1885
The original action in this cause was founded upon the-covenants of warranty contained in a warranty deed dated February 25, 1875, executed by plaintiffs in error to one Michael Real, the grantor of defendant in error. The defendant in error was evicted by a paramount title, and brought suit upon the covenants of the deed to Michael Real, alleging that the covenants contained in the deed run. with the land, inured to his benefit, and were broken. Judgment was rendered in his favor in the district court, and the defendants in that action bring the cause into this court for review by proceeding in error. The questions presented will be noticed in their order.
It is contended by plaintiffs in error that the proof
The land was a farm, forty acres of which were under cultivation, and while it is not shown directly that plaintiffs in error were ever in actual physical possession themselves, yet we think there was enough to show that the possession was theirs though held under them by another. There was no adverse claimant on the farm. The title of Mrs. Eeal was not questioned, and her possession by those occupying it not disputed. The trial court was justified by the evidence in finding with defendants in error upon this question of fact. Indeed we do not see how it could have found otherwise. The deed from plaintiffs in error to Michael Eeal contains the usual covenants found in warranty deeds in common use in this state, viz., of seizure, against incumbrances, right to convey, and of general warranty. This being true, it is clear that so far as this deed is concerned the covenant of warranty would run with the land and inure to the benefit of a subsequent grantee.
“warranty deed.
“ The grantors, Michael Real and Elizabeth Real, his wife, of the town of Milo and county of Bureau, in the state of Illinois, for and in consideration of one thousand dollars in hand paid, convey and warrant to John A. Hollister, of the county of Fillmore and state of Nebraska, the following described real estate, to-wit; ” followed by a description of the land and a release of homestead rights etc.
While this deed may not be such an one as under the law of this state would amount to a deed of full covenants of warranty, yet -it shows upon its face to have been an effort to make a warranty deed, and would thus be so closely connected with the deed executed February 14, 1880, as to remove all doubt as to the intention of the grantors at the time of its execution, and to give the grantee the full benefit of the warranties contained in both. This being, in our view, beyond question, the con
The covenant of warranty is said to be the most effective of the covenants in American deeds, and in some of the states the only one in general use. Leary v. Durham, 4 Ga., 593-601. Dickinson v. Hoomes, 8 Gratt., 355-399. It runs with the land and passes with the fee to any subsequent grantee of the same title. Rindskopf v. Farmers’ Loan and Trust Co., 58 Barb., 36. White v. Whitney, 3 Metc. (Mass.), 81. Lawrence v. Senter, 4 Sneed, 52. Moore v. Merrill, 17 N. H., 81. Le Ra De Chaumont v. Forsythe, 2 P. & W., 507. And the last vendee with warranty may therefore maintain an action for a breach of the covenant against the first or any other warrantor. Lawrence v. Senter, supra. Kane v. Sanger, 14 Johns., 89. Withy v. Mumford, 5 Cow., 137. Clayton v. Munger, 51 Ills., 373. We therefore conclude that plaintiffs in error are liable to defendant in error upon the covenants in their deed to Michael Real.
It is claimed that as the proof shows that P. S. Real never at any time owned the land, it being held alone by Ellen Real, his wife, he is not liable to plaintiff in error; that the covenant of title so far as it affected him was broken at the time the deed was executed, and therefore it •did not run with the land and was not assignable. This proposition is met by defendant in error with the contention that P. S. Real cannot now raise this question, he having failed to do so in the trial court by a separate motion for a new trial, or in this court by a separate petition in error. By an inspection of the record we find that plaintiffs in error joined in the motion for a new trial, neither asking any relief which might not be found to be •common to both. The grounds assigned being—“ 1st, Error •of law occurring at the trial and excepted to by defendants. 2d, That the decision and finding of the court is not sus
In Long and Smith v. Clapp, 15 Neb., 417, it has been-held by this court, Chief Justice Cobb writing the opinion* that in an action against two defendants charging them with the making and the breach of a joint warranty in the sale of chattels, the evidence being sufficient as to one but not to the other defendant, where the verdict was against both, and the one against whom there was but insufficient evidence made no motion for a new trial as to himself' alone, and judgment was rendered against both, it would not be 'disturbed. It seems to us that the rule as there stated, when applied to a judgment rendered upon a joint warranty, is fully applicable to this case, and must settle it-, adversely to plaintiff in error, P. S. Real. It is true he filed a separate answer; but he appears to have abandoned all idea of a separate defense in the further progress of the case. The petition in error following the motion for a. new trial is a joint petition.
It is next insisted that as Ellen Real was a married woman at the time of the execution of the deed in question* and the deed is executed by herself and husband jointly she is not, under our statute, bound by the covenants in her deed. In support of this we are cited to-section 48 Chap. 73 of the Compiled Statutes. This section is aa follows: “ A married woman shall not be bound by any-covenant in a joint deed of herself and husband.” Thia section was enacted in 1866, and is carried down from the Revised Statutes. What is generally termed “the married woman’s act” was adopted in 1871. Laws of 1871* p. 68, Compiled Statutes, Chap. 53. By section 2 of this act it is provided that, “ A married woman, while the marriage relation subsists, may bargain, sell, and convey her real and personal property, and enter into any contract with-reference to the same in the same manner, to the same ex— tent, and with like effect as a married man may in relation'
The last question presented by plaintiffs in error, is that there is no proof of an eviction. The testimony shows that one James "W. Parker recovered a decree in the circuit court of the United States for the district of Nebraska, against defendant in error, by which it was adjudged that at the time the United States conveyed the land to Linas Clapp the St. Joseph and Denver City Railway Company was entitled to a conveyance thereof, and that defendant in error held the legal title to the property in dispute in trust for said Parker, and requiring him to execute a conveyance thereof to Parker, or in case of his failure to do so in thirty days that a conveyance be made by a master in chancery,, designated by the court. It is also shown by proper proof that after this decree was entered in the circuit court James W. Parker conveyed the real estate in question to A. C. Goodman, and that A. C. Goodman conveyed it to-George M. Wood, and that George M. Wood brought suit, in ejectment in the district court of Fillmore county against defendant in error, and on the 30th day of November, 1883, recovered a judgment against him for the possession of the property. There is some uncontradicted evidence tending to show that plaintiffs in error had notice of the pendency of these actions against defendant in error. There is no proof that an execution was issued upon the judgment for the possession of the land, nor that defendant was forcibly evicted therefrom. Nor do we think
It follows that the judgment of the district court must be and is affirmed.
Judgment affirmed.