Smith v. Perry

26 Vt. 279 | Vt. | 1854

The opinion of the court was delivered by

Redfield, Ch. J.

I. In showing that the recovery of the land was by elder and better title than that of the covenantor, the will of Daniel Harris was put in the case, by the plaintiff. It is objected to this, that it did not appear to have been recorded in the town clerk’s office. This will was dated June 9, 1774, and proved May 2, 1781. It is not claimed that the existing statute requiring proceedings in the probate court, affecting the title of real estate, to be recorded in the town clerk’s office, can affect the present case, this statute being only of a comparatively recent date. But reliance is made upon the constitution of the state, at the time this will came in force, which required, in general terms, all conveyances of land to be recorded in the town clerk’s office, and the statute passed in accordance with such provision, which required such conveyances to be acknowledged and recorded in such office. We think those provisions undoubtedly had exclusive reference to such conveyances of land only, as operated mier vivos, and not to mere devises of land. It was certainly not the practice to record wills, to any great extent in the town clerk’s offices, in many sections of the state, until a comparatively late period, which gave rise probably to the present statute upon that subject.

II. The deed of Christopher Bates and wife, the wife being a daughter of said Harris was also put in evidence, by the plaintiff for the same purpose. This deed is objected to, as not sufficiently acknowledged by the feme, that being done before a justice. But we think the deed was sufficiently proved to make it evidence, by way of estopel, upon the grantee. It was only offered to show claim of title by Reed, and was the deed of Bates, and good to show claim of title under the wife, and thus to introduce the very defect of title, upon which- the land was lost to the covenantee, or his assignee; i. e., that no fee simple existed by the will, in Bates’ wife, and that neither she or her husband could convey any such estate. As in fact Bates survived his wife, the deed conveyed all that it would have conveyed, if it had been properly executed by the wife, unless it would then have barred the entail, which is not very probable. It will show then, that Reed held the land under Bates, and that his possession would not become adverse to the heirs of the wife, until after their right of entry accrued, which could not be during the coverture, or the estate by courtesy. We think this deed was evidence for this purpose, and that the proof did show that the recovery was by elder and better title, and so met the issue.

III. The deed of Reed to Zerah Mead, is certainly not in the most usual form. But it seems to have been drawn according to the legal effects of the covenants. Those of seizin, and good right to convey, and against incumbrances which are merely personal, and not assignable, are in terms confined to the grantee, which is giving them all the force, which, in law, could be given to them. As they do not run with the land, and cannot be sued by an assignee of the estate, the introduction of the word assigns would have been merely nugatory. So also of executors and administrators, as they succeed the legal rights of the covenantee, by act of law, as well without being named, as if they were so named.

But the deed shows, that no purpose existed of limiting or attempting to limit the assignable quality of the estate conveyed, as the habendum of the deed is expressed in terms to the grantee, his heirs and assigns. And if it was the purpose to convey an assignable estate, and covenants were given to fortify the title, and for quiet enjoyment, and which do run with the land, it must have been intended, that these covenants should be operative after the grantee should convey, and in favor of all, who, in privity of estate, should be entitled to take the benefit of them. And this no doubt would be the legal effect of such a covenant in general terms to the grantee. It should be construed as virtually in favor of any one seized of the estate, as he would be the only one damnified by the breach unless in express terms of negation, confined to the grantee, as the three first covenants in this deed seem to be.

But the covenant of warranty is general, “ to warrant and defend the premises,” not in terms to Mead alone, while Mead held them, but into whosesoever hands they should come. We must think this was the purpose of having the covenant expressed, in these general terms, and that it is not controlled by the general preface, that “ I covenant with' said Zerah Mead,” which really does not seem to have any very apparent force in the deed. But it seems perfectly well settled, that at common law, a covenant running with the land, in the name of the grantee only, may be sued by any one in the estate, at the time of breach. 1 Smith’s Leading Cases 110, citing a great many cases,and Kingdon v. Nottle.

IV. In regard to the right of the present plaintiff to sue without first making satisfaction to the person evicted, there is perhaps some difficulty.

In Connecticut, in Booth v. Starr, 1 Conn. 244, and in N. H. in Chase v. Weston, 12 N. H. 413, it is considered, that the right of the’ grantee, or any intermediate assignee, to sue upon the covenants, after parting with the estate, is absolutely dependent upon his having made satisfaction to the person evicted. And upon principle it would seem such should be the rule, in order to prevent a liability to repeated judgment, for the same thing. This be sure is not an unanswerable impediment. There are cases where a party is so situated as to be subject to such embarrassment. But ordinarily such a result is to be deprecated, as it might render a resort to chancery necessary.

The first covenantor seems to be the one primarily liable. The other covenantors come in aid of his undertaking, and. are virtual sureties, with a right of indemnity over against the first warrant- or. But as the undertaking is to save them absolutely harmless, even from liability, they may perhaps all sue at once for indemnification, upon the occurrence of an eviction. But upon common principles can they recover the full value of the breach, until they have paid the amount to the person evicted ? If so, the original covenantor may be liable to an. indefinite nurbber of suits and judgments, for the full value of the land, and the payment of one, will possibly not satisfy the other judgments at law. It clearly will in equity, if made, as it should be, to the person evicted.

But if the suit is brought with the privity, and for the benefit of the person evicted, and especially when the estate of the original warrantor, is in a course of settlement, in insolvency, there seems no hazard of injustice, in giving judgment for the full amount of the value of the land, against the estate once, on condition that if any allowance shall be obtained, this judgment shall be reduced to a nominal sum. This will remove all question, and the judgment will be affirmed, under this rule, and so certified to the probate court.

It has been decided in this state, that the person evicted has the primary right of action, and that after the intermediate grantee has made satisfaction to the person evicted, he alone can sue. Williams v. Wetherbee, 1 Aikens 233. And that an intermediate grantee who has conveyed the estate, without warranty, cannot sue for a breach of the covenant, after he parted with the estate. Keith v. Day 15 Vt. 660. And possibly the recovery of judgment, against the intermediate warrantor, for the full value of the premises, may alter the state of such warrantor, as to his right of full damages. I do not now see how it should, upon general principles. In Smith’s Leading Cases 110, in notes to Spencer’s case it is said by Mr. Smith, that the better opinion of the English law is, that the covenantee, after assignment, cannot sue for a breach in the time of the assignee. Green v. Jones 6 M. & W. 656.

The judgment is affirmed under a rule, that if any other sum should be allowed against the estate of Reed, for the breach of this same covenant, it shall he deducted from the damages recovered in this action. And is thus to be certified to the probate court.