5 N.C. 343 | N.C. | 1810
delivered the opinion of the Court:
So large a proportion of the contracts of the people of this State arises from the commerce in lands, that it is
The statute of quia emptores, afterwards abolished sub-infeudations, and consequently with them, the warranty, so far as it respected the heirs of the feoffor : because, as this was a consequence of tenure, it could not subsist without it. Thenceforward the implied warranty only bound the donor during his own life, and except in the
By the warranty, which is the foundation of the second count, it must be admitted that an obligation is created, which in England is enforced by a writ of war-rantia chartrn, or by voucher. The first has never been used in this State; the second is permitted only in real actions, which has never been resorted to.here. Unless then an action of covenant is sustained, the party who has an acknowledged legal right is without, remedy. The reason why an action of covenant lies not in England on a warranty is, that the party nas a higher and better remedy, which the law always compels a person to use. But even there, if that remedy cannot be afforded him, the law permits him to bring covenant; as if a term for years only be recovered out of an inheritance which has been warranted to him, as in this case, he could not vouch, for that is permitted only in real actions : nor could he bring a warrautia chartm, for that is where some person demands or claims the fee of him. Of necessity it gives a lesser remedy. This doctrine is exemplified in Yelverton’s Reports, 139, Pencombe v. Rudge, We therefore think that the action of covenant will lie ^ upon the warranty contained in the second count in the •"'declaration. ""
With respect to the plea relied upon, and which forms a part of the case, the Court are not aware of any principle upon which it can bo sustained. Had the suit been brought in tiic name of the Plaintiff’s vendee, there might h^ve been some ground for an objection; for as the breach ‘ was coeval with the covenant, the right to sue was a chose in action, the propriety of assigning which is at
contra. I agree with my brethren as to the first and third points made in this case; but disagree with them as to the second. My reasons for this disagreement are given at large in the next case of Powell v. Lyles, decided at this term.