103 Ga. 409 | Ga. | 1898
The question for adjudication which arises in this case grows out of the following state of facts. On the 23d
Mr. Rawle in his work on Covenants for Title (p. 301) lays down the rule on this subject in the following language: “It is a settled rule on both sides of the Atlantic, that until breach the covenants for title, without distinction between them, run with the land to heirs and assigns.” He further says, “But while this is well settled, a strong current of American authority has set in favor of the position that the covenants for seisin, for right to convey, and perhaps against incumbrances, are what are called covenants in prsesenti — if broken at all, their breach occurs at the moment of their, creation. The covenant is that a particular state of things exists at that time, and if this be not true, the delivery of the deed which contains such a covenant causes an instant breach; these covenants are then, it is held, turned into a mere right of action, which is not assignable at law, which can be taken advantage of only by the covenantee or his personal representatives, and can neither pass to an heir, a devisee, nor a subsequent purchaser.” In volume 19 of the American & English Encyclopaedia, of Law, page 997, note 2, a large number of authorities are cited to establish the doctrine, that after a breach a covenant is a mere claim, a chose in action, incapable of transmission or descent, and to be sued upon by the executor or administrator for the breach occurring in the covenantee’s lifetime. Further it seems to be well established, that in order for covenants to pass with the land there must in fact be a conveyance of some estate to which the covenant is incident, and that if no estate really passes by the deed which contains the covenant, no ^subsequent conveyance
The English cases seem clearly to establish the following rules governing the question: (1) Covenants incident to the enjoyment and ownership of an estate ran with the land so as to enable a subsequent grantee, between whom and the original grantor there was a privity of estate, to enforce the grantor’s covenant in his own name in a court of law, only so long as the covenant remains unbroken. (2) After breach, the covenant became a chose in action and did not pass to an assignee. (3) If the grantor is not in possession, but the land is held adversely to him at the time of his conveyance, his covenant of seisin is at once broken, and the deed is void as a muniment of title. The first of these rules has for its foundation the doctrine that real covenants run with the land because of a privity of estate between the original grantor and the grantee of the first covenantee. This fiction, rf it may be so called,- in reference to privity of estate, can not anywhere apply unless the original grantor had title, or was at least in possession, because under the common law the deed to lands made by one not in possession was void. Being so, no estate in the lands passed to the last grantee, and as no interest in the lands passed, there could be no covenant of the first grantor which passed, because in its nature it attaches or runs only with .an estate which passes by the deed. Considered as a matter of
This court has incidentally referred.to the question under consideration, and given expression to views which it might be well to consider at this point. In the first case (Leary v. Durham, 4 Ga. 602), it was said by Lumpkin, J.: “The rule that the assigneé can not maintain an action'depends upon the doctrine of the common law for the avoidance of maintenance, the good sense of which has Been very properly questioned. Master v. Miller, 4 B. & C. 320. Courts of equity, from the earliest time, thought it too absurd for them to adopt. The modern tendency, both of legislation and judicial decision, is to allow the party in interest to bring the suit, whoever that may be.” In that case the assignee, was allowed to recover for the breach of a covenant against incumbrances usually regarded in this country as merely a personal covenant, not running with the land, because, if broken at all, the breach occurs immediately upon delivery of the deed. Again in Redwine v. Brown, 10 Ga. 317, 318, Judge Lumpkin touched upon the
The contention of the defendant in error is borne out by the decisions of the English courts, and by a number of authorities in this country. Of the latter, many are based on the common law, and a few have reference to statutes. But in view of the very broad provisions of our. code, we are clearly of the opinion, that not only is the common-law rule changed, but that the reasons which existed as the basis for that rule are met by express enactments of our legislature establishing the propositions, that it is not necessary that privity of estate should exist between the. original covenantor and the. purchaser from the covenantee, in order to create covenants which run with the land, and that choses in action are assignable. But whatever may have been the established rules of’ law of the English courts, when the provisions of our statute are applied to the question in issue, the result will be found to be different. When the Code of 1863 was adopted, it was expressly provided that “ The purchaser of lands obtains with the title, however conveyed to him, at public or private sale, all the rights which any former owner of the land, under which he claims, may have had by virtue of any covenants of-warranty of title, or of quiet enjoyment, or of freedom from incumbrances, contained in the conveyance from any former grantor, unless the transmission of such covenants with the land is expressly negatived in the covenant itself.” The same provision will be found incorporated in our Civil Code, § 3612. Under this declared rule, it will be observed that the purchaser is put in the place of the covenantee, that from the fact of the purchase he obtains all the rights the latter may have had by virtue of any covenants of warranty of title, etc., and the oply way to prevent the transmissiqn of such rights to the purchaser is to expressly negative the transfer in the covenant itself. In the present case the warranty of title is general. Nevertheless the purchaser acquires the right to enforce personal as well as real covenants; for it is provided in the Civil Code, §3614, that
In view of what has been said, it is clear that the reason for
Reversed.