32 Iowa 317 | Iowa | 1871
Ye are fully aware of the discord of authorities upon this question, and that a great majority of the American cases hold the covenant to be in presentí, and that it is Droken, if at all, when the deed is delivered, and that the claim for damages thereby becomes personal in its nature to the grantee, and is not transferred by a conveyance to a subsequent grantee. But in England the rule prevails that the covenant runs with the land, and recovery for a breach thereof may be had by the assignee of the grantee in the deed. Kingdon v. Nottle, 1 Maule & Selw. 355; 4 id. 53; King v. Jones, 5 Taunt. 418; 4 Maule & Selw. 186; 1 Smith’s Lead. Cases, Am. notes to Spencer’s case, p. 150; 4 Kent’s Com. 472; 1 Washburne on Real Prop. 619.
The English doctrine has béen adopted, and the rule in Kingdon v. Nottle, followed by the supreme courts of Ohio and Indiana, with the modification, however, in Ohio, that when the grantor has neither title nor possession, and is therefore unable to transfer either by his deed, the covenant is broken as soon as made, and becomes a mere right of action which is not transferred by a subsequent conveyance
A similar rule, applicable to covenants against incumbrances, formerly prevailed in Massachusetts, but has been abandoned. Wyman v. Ballard, 12 Mass. 304; Sprague v. Baker, 17 id. 586.
A like doctrine is recognized in South Carolina. McCready’s Ex'r v. Brisbane, 1 Nott & McCord, 104.
The English rule is commended to us by reason and justice, and Chancellor Kent, while condemning the reasons upon which it is supported in Kingdon v. Nottle, admits that the American doctrine is supported upon a “ technical scruple,” and assigns the most conclusive reasons in support of the opposite English rule. 4 Kent, 472.
The object of all covenants in conveyances of lands, relating to their title or their enjoyment, is to secure indemnity to the party entitled to the premises in case he is deprived of them. The subsequent vendee, in the language of Kent, “ is the most interested and the most fit person to claim the indemnity secured by them (the covenants), for the compensation belongs to him as the last purchaser and first sufferer.”
The American rule will operate oppressively in all cases where the land has been subsequently conveyed by the grantee, either toward the grantor or subsequent purchaser. If the purchaser is evicted he ought to receive the indemnity secured by the covenant; for he is not only, as is said by Kent, the first sufferer, but the only sufferer in every instance, except when he has not paid for the land. When the grantee, under the deed containing the covenant, has sold and received pay for the land, it would be gross injustice to permit him to recover, for he would not in that case sustain damages. But under the rule, to which we are now objecting, the grantee may recover on the covenant of seizin and, if there be a covenant of warranty in the
The “ technical scruple,” as it is called by Kent, upon which the American doctrine is based, is this: The cove-, nant is broken the instant the conveyance is delivered; it then becomes a chose in action held by the grantor in the deed. Brady v. Spuck, 27 Ill. 478; King v. Adm'x of Gilson, 32 id. 348. But how can this be a reason in support of the doctrine under the laws of this State which permit the assignment of all choses in action ? What legal principle would be violated by holding that the deed from the first grantee operates as an assignment of this chose in action ?
Deeds under the laws of this State have been reduced to forms of great simplicity. Intricate technicalities have been pruned away, and they are now as brief and simple in form as a promissory note. All choses m action, as I have just remarked, may be assigned and transferred. The covenant of seizin (if it be held that such a covenant exists in a deed of the form authorized by the laws of this State), as we have seen, is intended to secure indemnity for the deprivation of the title and enjoyment of the lands conveyed. Why not brush away the “ technical scruples ” gathered about the covenant of seizin, as we have the like technical and cumbrous forms of the instrument itself, and enforce it for the benefit of the party who is really injured by its breach, even though, in so doing, we find it necessary to hold that a chose in action is assigned and transferred by the operation of the deed ?
To my mind, the position reached by this course of argument is impregnable, and I cannot be driven from it
We conclude that plaintiff was not entitled to recover for the land conveyed by him, and that the court erred in rendering judgment for the full amount of the consideration paid, as shown by the deed.
This rule is based upon sound reason, and accords with the analogies of the law.
The defendant claims that in this the court erred, as the onus was upon plaintiffj who should have been required to prove that defendant did not hold the title. If defendant’s answer be understood as an averment that he held the title when the conveyance was executed, it must be considered under Swafford v. Whipple, 3 G. Greene, 261, as
On account of the error in holding that the covenant sued upon does not run with the land, the judgment of the circuit court is
Reversed.