White v. Presly

54 Miss. 313 | Miss. | 1877

Chalmers, J.,

delivered the opinion of the court.

Huntington sold a tract of land by title-bond to Presly. Presly, without having paid it out or received a deed, sold to Jones. By agreement, Jones paid to Huntington the amount due by Presly, and received a deed directly from Huntington. Subsequently, Presly recovered a judgment against Jones, levied on and sold the land, and received a deed tberefor from the sheriff. He brought ejectment against Jones to recover possession of the land under the deed from the sheriff; but while his suit was pending, one Hooper, who was the owner of an outstanding paramount title (better than that proceeding from Huntington), also brought ejectment against Jones, recovered judgment, and evicted Jones’s heirs (he being dead) under writ of habere facias possessionem.

It being thus rendered certain that Presly could recover nothing under his ejectment suit based upon the sheriff’s deed, the same was by him dismissed, and this action brought against the administrators of Huntington, who had died, to recover upon the covenant of warranty contained in the deed executed by Huntington in his lifetime to Jones. It is urged that Presly cannot recover upon this covenant, because it is to J ones and his heirs, and not to Presly, and the latter has no conveyance from the former. It is said that Jones’s heirs alone can maintain such a suit.

This position is unsound in both of its branches. The covenant of general warranty runs with the land, and inures to the benefit of him who is the owner of the defective title at the date of the breach. It passes as well by an involuntary as by a voluntary sale, and hence is transmitted by a sheriff’s deed. Rawle on Covenants for Title (3d ed.), 352 and note 2.

The eviction in this case was of the heirs of Jones ; but they were wrongfully in as against Presly, as well as against Hooper, the true owner. At the date of the eviction, therefore, Presly, and not Jones’s heirs, was the owner of the defective title; and he, and not they, was entitled to sue for breach of the covenant.

It is said that there had been no hostile assertion of the paramount title against Presly. The eviction of Jones’s heirs under the circumstances may well be considered as an eviction of him; and, at all events, the true owner of the paramount title was in before the institution of this suit; and this, according to all the authorities, is equivalent to eviction.

There was no error in the admission in evidence of the deed from Huntington to Jones. It was upon the covenants in that deed that the suit was based; and its introduction was both proper and necessary. The admission of the title-bond, if wrong, could not have prejudiced the defendant.

■The measure of damages adopted seems to have been the amount paid by Presly- at the sheriff’s sale. This was correct, it not exceeding with interest the amount of purchase-money received by.Huntington from Jones.

Judgment affirmed.