12 Kan. 467 | Kan. | 1874
The opinion of the court was delivered by
This was an action brought by Scoffins, plaintiff in error, for the recovery of the possession of a certain twenty-acre tract of land situated in Wyandotte county. The facts are substantially as follows: The land in controversy is a portion of the lands assigned to individuals and families of the Shawnee tribe of Indians under the treaty between the United States and said tribe of Indians of May 10th, 1854.
The real question presented by the foregoing facts is, who . owns said land — William Scoffins, the plaintiff, or Abraham and Ellen Grandstaff, the defendants? It is admitted that the deed from Bigknife to Scoffins was void, and conveyed no title. And for that reason it is also admitted, that the deeds from Scoffins to Adams, and from Adams to Purdon, under whom the Grandstaffs now claim, did in like manner convey no title. While on the other hand it seems to be admitted that the deeds from Bigknife to McBride, and from McBride to Scoffins, passed the title to Scoffins. And we suppose it will also be admitted that under our 'statutes the title when it passed by said deed to Scoffins immediately inured to the benefit of Scoffins’ grantee, to-wit, Adams. (Comp. Laws, 354, § 4; Gen. Stat., 185, ch. 22, § 5.) But as the deed from Adams to Purdon was only a quitclaim deed, purporting to convey only the interest that Adams had
The first, second, and third of these covenants, to-wit, the covenant of ownership, the covenant of seisin, and the covenant against incumbrances, are personal covenants, and do not run with the land. The first and second of these covenants were broken at the time of the delivery of the deed, and because of such breach an action immediately accrued thereon in favor of Adams and against Scoffins for the actual loss sustained by Adams. How losses shall be estimated in cases like this depends upon the circumstances of each indi
The third covenant in said deed, to-wit, the covenant against incumbrances, was never broken and never will be; but if it had been broken, no recovery, except for nominal damages merely, could be had for the breach until some actual loss had been sustained, such for instance as the loss of the land, or the payment of money to extinguish the incumbrance. (Rawle on Covenants, 4th ed., 288, et seq.)
The fourth covenant, to-wit, the covenant for “quiet and peaceable possession,” or in other words the covenant for
There are some other questions that might be considered in this case. As we have before stated, Scoffins, who had no title, executed a warranty deed to Adams, and Adams executed a quitclaim deed to Purdon. Afterward Scoffins acquired the paramount title, and this title inured under the statute to Adams. Now the question may be asked, whether said inurement did not extinguish the covenants contained in the deed from Scoffins to Adams. Possibly it did, as between Adams and Scoffins, but it could not have done so as between Purdon and Scoffins, for the covenant for quiet enjoyment had wholly passed from Adams to Purdon before said inurement. But another question may be asked: Suppose that Adams, after the title had inured to him, had retained the same himself, or had transferred it to some person other than Scoffins; and then suppose, that Purdon had been evicted from the premises by the person holding the paramount title: what would have been the measure of damages in an action brought by Purdon against Scoffins on said covenant for quiet enjoyment? We do not desire to express any opinion upon this question. Possibly the damages would have -been merely nominal, but still we think the covenant would not have been wholly extinguished; and if not extinguished, then we think Scoffins is estopped from denying its force in an action like the one at bar.
The judgment of the court below is affirmed.