10 Ga. 311 | Ga. | 1851
By the Court.
delivering the opinion.
Lewis Redwine filed his bill in the Superior Court of Coweta County, stating that under the Lottery Act of 1825, disposing of that portion of the territory of Georgia, which lies between the Flint and Chattahoochee rivers, one James St. John drew lot No. 161, in the 1st District of said County, and that the same was granted to him by the State, on the 11th day of October, 1828; that on the 20th of the same month and year, St. John conveyed the land to one Michael Madden; that shortly thereafter, Madden conveyed to one Giles B. Taylor; these deeds contain no covenant of the warranty of title ; that in October, 1829, Taylor conveyed with warranty, to one Shadrach Perry; that in June, 1831, Perry conveyed with warranty, to John Red-wine; and that John Redwine, in September, 1831, conveyed with warranty, to Lewis Redwine, the complainant ’; that Lewis Redwine afterwards sold and conveyed the land, with warranty, to one David Dominick, who having died intestate, the land was regularly sold and conveyed by his administrator, to one Sterling Elder; all the deeds were duly recorded in the proper office; that Elder took actual possession of the land, and made valuable improvements thereon. The bill alleges that the title was well known and recognized by all persons, previous to that time. The bill further charges, that one William B. Brown, with a full
To this bill, Brown filed a general demurrer, for want of equity, with specifications. The Court sustained the demurrer, and ordered the bill to be dismissed on two grounds, to wit:
1st. Because Lewis Redwine, not being the landlord of Elder, he ought not to have been made a co-defendant in the action at Law.
2dly. Because Elder, having purchased at administrator’s sale, under the doctrine of caveat ernpior, and because the administrator could make no assignment of the warranty from Red-wine to Dominick, would not be liable to Elder, in case of eviction, and consequently had no such interest as would entitle him to maintain the bill; whereupon, complainant, by his counsel, excepted.
Three questions are made by the record:
2dly. Could the order making him a co-defendant, be impeached by demurrer to the bill ?
3rdly. Had Lewis Redwine such ah interest in the subject matter, as would enable him to apply to a Court of Equity for relief?
The uniform practice in this State, has been to allow all such to come in and defend; and it orginated no doubt, in the decision made by the Court of King’s Bench in England, upon that Statute, as early as 1762, in -which, after mature consideration, the term landlord, was extended beyond its strict import, and made to include every person whose title is connected to or consistent with the possession of the occupier, and which would be divested or disturbed by any claim adverse to such possession. Fairclaim ex dismiss, Fowler et al. vs. Shamtotle, 3 Burrows’ Rep. 1290.
In conformity with this explanation of the Statute, remainder-men, devisees in trust, mortgagees and infants, and “ all other proper persons,” to use the language of one of the laws, have been admitted to defend. Nor do we see any inconvenience or injustice that is likely to result from this exposition of the enactment. Lord Mansfield assigned this very satisfactory reason for its adoption; that where there is a privity of interest, letting in the person behind, may operate to prevent treachery and confusion.
By making- himself a party, the warrantor cannot urge as a defence any. matter which the law did not previously recognize as available, to defeat a recovery by the plaintiff. The construction does not afiect the parties’ rights; it relates only to the rem
Mr. Justice Wihnot, in the case just cited, observed that it was very remarkable that the different Acts of Parliament had been made at near 500 years distance upon the very same subject, when there was no occasion for either, viz : the Statute of Westminster, 2 ch. 3, (13 Ed. I. A. D. 1285,) and this Act of II. Geo. 2 ch. 19. The first of these he said, was no new provision ; for before that time all those that stood behind the tenant in possession had always a right at Common Law to come in and be received, pro interesse suo, to defend the possession, which was very material to them, and by the change whereof, they would have been greatly incommoded, and he refers to Coke's Inst. v. 2, 344, 345, and Braeton, lib. 5, fo. 393, b.
And Lord Mansfield during the progress of the argument, asked the Court on both sides, if they had found any case prior to that of Goodright vs. Hart, et. ux. 2 Strange, 830, 2 Geo. II. where the Court had refused to let in persons who stood behind the tenant in possession, to defend, pro interesse suo, in the stead of the tenant in possession ? And they all answered, “ none at all.”
It would seem, therefore, that the practice had always been in England, as is contended for by the counsel for the plaintiffs in error, and that it was this “ hasty” adjudication reported by Sir John Shorry, where the Court refused to permit Hart and wife to be made co-defendants, because the tenant in possession would enter no appearance or make any defence, which occasioned the clause in the Act of Parliament which we hav.o been considering, and which was construed by the Courts in the spirit of the liberal practice which had previously obtained.
£3.] But the last and main question is, has Lewis Redwine
In Leary vs. Durham, 4 Geo. Rep. 593, this Court held, that where land has been conveyed with covenants of warranty, and the land has passed by subsequent conveyances, through the hands of various covenantors, the last covenantee or assignee in whose possession the land was when the covenant was broken, may sue for a breach of the covenant, and he had a right of action against the original warrantor. Further examination has but served to strengthen our conviction of the soundness of that opinion. Doubts, I know, have been entertained in relation to the subject, and it has been held, that the grantee, on failure of title, is confined in his remedy to the immediate covenant to himself.
But this question has been settled, in cases which were thoroughly discussed and considered, and it is now well established both on principle and authority, that the right of action passes to the last covenantee or assignee, and that he may proscribe any work of the prior covenantors until he has obtained satisfaction. 5 Cowper, 137. Withy vs. Menford, 10 Wend. 180. Suydam vs. Jones, 1 Conn. R. N. S. 244. Booth vs. Starr, 12 Mass. R. 304. Wyman vs. Ballard, 1 Fair. 91. Griffin vs. Fairbrother, 1 Aiken, 233. Williams vs. Wetherbee, 1 Dev. and Bat. 94. Markland vs. Camp, 3 Barn. and Ald. 392. Campbell vs. Lewis, 1 Maule and Selwyn, 355. Kingdon, executor, &c. vs. Nottle, 4 Ibid, 53. Kingdon, devisee, vs. Nottle, 5 Taunt. 418. King vs. Jones, 4 Bibb’s R. 225. Bradford vs. Long, 3 Bibb’s R. 173. Broker vs. Bell, 3 Marshall’s R. 223, ’4. Berry vs. Home, 1 Littell’s R. 376. Lott vs. Parish.
But while the general doctrine will not perhaps be seriously disputed, that the vendee with general warranty, by the mere act of purchase, becomes assignee of the covenants of general warranty, taken by his vendor for his security; in other words, while it is admitted generally to be true, that the vendee, with general warranty, is the assignee of every remote warrantor’s title, and of the title of any person from whom his vendor may have purchased, still it is insisted that the present case does not fall within this principle 5 and for the reason assigned in the judgment below upon the demurrer, namely, that the administrator of Dominick could make no assignment to Elder of the warranty of Redwine, to his intestate, and that therefore Red-wine would not be liable over to Elder in case of eviction.
This opinion rests upon the idea that the administrator could not, by his covenant of warranty, bind the estate which he represented, and that this hiatus in the claim of covenants, would prevent the purchaser from having his remedy over. But this exception is not sustained, either by reason or by authority.
It is worthy of notice, that in several Courts where this sub
We apprehend that this position will be found to be equally untenable.
What did the administrator of David Dominick, deceased, convey to Elder? Lot of land, No. 161, in the 1st District of Coweta County, “with all the rights, members and appurtenances thereto belonging or in anywise appertaining,” &c. It is not therefore because of a covenant of warranty, that Elder becomes the assignee of the previous covenants, but because he takes the same estate and stands in the place of his vendor’s intestate, and thus a privity of estate is created. 4 Cruise’s Dig. 316.
The character of the estate, say the Supreme Court of Tennessee, in Hopkins vs. Lane, 9 Yerg. 79, which maybe transferred by a deed, is not affected by the existence or non-existence of a covenant of warranty. If, by the terms of the conveyance, the same estate which had been conveyed to the second vendor,
In Spencer’s Case, 5 Coke, 17, 5th res. it is said that a tenant by Statute merchant or Statute staple, or elegit of a term, and he to whom a lease for years is sold on execution, shall have an action on a covenant annexed to the land, although they come to the term by act in law. And in South Carolina it has been decided that a covenant running with the land, passes by a Sheriff’s sale to the purchaser. McCrady vs. Brisbane, 1 Nott & McCord, 104. See also 1 Esp. N. P. 150, 2 pt. Gould’s ed.
In Hodges and Saunders, 17 Pick. R. 470, the question was raised as to what passed by an administrator’s sale, under a license of Court, where the conveyance contained no covenant for the validity of the title, and the Court say, “ That the administrator has the power, in the largest possible terms, to sell the estate ; but he is not bound to warrant, except the regularity of his own acts. The purchaser is to be put in the same situation that the intestate was in. The title of the heir is divested and
Finding such a concurrence of authority, English and American, upon this point, and not a solitary doctrine to the contrary, we deem it useless to extend this examination further. We are all well satisfied that in case Elder should lose this land, he would be entitled to go back upon Lewis Redwine, upon his covenant of warranty to David Dominick, and that consequently he is rectus in curia as complainant in the bill, seeking to have the incumbrance over the title removed.
The judgment below must be reversed.