91 Ky. 1 | Ky. Ct. App. | 1890
delivered the opinion oe the court.
The appellee, as the purchaser at decretal sale of the tract of land that the appellant sold to Y. R. Stiles with covenant of warranty of title, said land having been sold at said decretal sale as the property of Y. R. Stiles, instituted this action on the appellant’s covenant of warranty to said Stiles to recover damages for the loss of said land by eviction after said purchase at decretal sale under a paramount adverse title.
The first question that the appellant makes is, that appellee can not recover on said covenant of warranty,
This is error. A covenant of warranty of title runs with the land, to which the vendee looks as security against any defect in the title, and which is transmitted to each successive purchaser; and the fact that a purchaser with this covenant sells the land to another person without his covenant of warranty does not restrict the latter’s right, so far as the previous warranty is concerned, to his immediate vendor. If the immediate vendor has a covenant of warranty, as it runs with the land, it is included in the sale of- his title, notwithstanding the fact that he declines to warrant the title thus conveyed. This covenant of warranty is not conveyed by a succeeding covenant of warranty, but by the words of conveyance, and any words that convey the title convey the warranty that the vendor holds, because, as said, it runs with the land, and is transmitted by the conveyance. (Cummins v. Kennedy, 3 Litt., 121; Young v. Triplett, 5 Litt., 247; Hunt v. Orwig, 17 B. M., 83; Perkins, &c., v. Coleman, &c., 90 Ky., 611.) It is true that the purchaser of land at decretal sale does not acquire a title with covenant of warranty, but he does acquire all the title that the owner has, and the covenant of warranty runs with, this title, which is included in the sale of it. As said, the title is passed by the words of conveyance, and not by the covenant of warranty; the latter runs with the title, and is passed to the vendee by the words of conveyance, and not by the covenant of warranty, and
To the former action to recover damages for a breach of this covenant a demurrer was sustained by the lower court, which decision was affirmed by this court upon the distinct ground that the petition was defective, and the action was dismissed. Thereafter this action was instituted, which, by additional allegations, cured the objection to the former action, and said allegations present a cause of action. But the appellant contends that the former action having been dismissed upon demurrer, said dismissal bars another action for the same cause.
It is true that a judgment sustaining a demurrer to a petition alleging a given state of fact is as conclusive as a verdict finding the same state of fact would be. The facts found to be true on the demurrer, as well as the facts found to be true by the jury, are both solemn adjudications upon said facts, and are res adjudícala. other action can be maintained for the same cause upon the same grounds that were set up in the first petition. The demurrer was an adjudication upon the merits of those facts, and they were found insufficient to sustain a cause of action. It, therefore^ may be truly said that there has been a. decision upon the merits of those facts. But if the action on demurrer is dismissed on account of the omission of an essential allegation, which the second petition supplies, the judgment on the allegations of the first petition is no bar to the second action. Yif is true that both actions were brought to enforce the same right, but the merits of the allegations in the second action, being essentially
It is next contended by the appellant that the limitation of five years bars the appellee’s right of action upon said covenant. This, as we think, is a mistake. We think that the limitation of fifteen years controls. The statute appertaining to that matter is, that an action “upon a bond or obligation for the payment of money or property, or for the performance of any undertaking, shall be commenced within fifteen years after the cause of action first accrued.” (General Statutes, chapter 71, article 3, section 1.) The obligation here, upon the written covenant of warranty of title, as said, runs with the land, and passes to any subsequent vendee of the title, as though he were the assignee thereof, and upon which he can sue for a breach thereof as though he were the assignee. Indeed, the sale of the title transfers the covenant to him, and his right to it is as complete as was that of his vendor to whom the covenantor had sold the land. It is true that recovery for the breach sounds in damages, but the action is on the written covenant, the breach of which is compensated for in damages. If the obligation were to pay property, the vendee’s right
The judgment is affirmed.