7 S.D. 471 | S.D. | 1895
The plaintiff, who is now appellant, alleges the following facts as his cause of action: In March, 1882, one R. S. W. Ely, then and until his death a resident of the state of Illinois, made, with others, a warranty deed, with full covenants, of certain lands in the state of Texas, to the plaintiff and appellant, for the consideration of $1,000. That the grantors in said deed had no title to the lands described, and that the plaintiff has never received any therefrom. That ill May, 1888, the said R. S. W. Ely died, leaving as heirs, surviving him, the defendants, Spencer and Hattie Ely. That at the time of his death he was seized of certain lands in Clark county, in this state, which descended to and are now owned and possessed by said defendants. Plaintiff asks judgment upon these facts, against said defendants for the amount of his damages on account of such broken covenant of the said R. S. W. Ely, ‘ ‘or so much thereof as the said defendants, as heirs of said R. S. W. Ely, may be answerable for under the laws of this state.” The answer of defendants denied the breach, denied that the consideration was $1,000, but alleged that it was certain mining stock, which proved to be worthless, and that plaintiff had suffered no damage; and, besides other affirmative matter in defense, it alleged that the said R. S. W. Ely died in Whiteside county, in the state of Illinois, in September, 1887; that he left a will, which was duly probated in said county, and under which the executors therein named, who were also residents of said county, duly qualified and settled the estate of tbe said Ely, deceased; that the said Ely, at his death, as aforesaid, left a large amount of personal property, which passed into the
Plaintiff frankly states that he brings this action under section 3254, Oomp. Laws, and upon the theory that it is designed to give a new cause of action against the heir, independently of the remedy given by other statutes against the covenanting grantor or his estate. The section reads as follows: ‘ ‘Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of any person who has made any covenant or agreement in reference to the title of, in, or to any real property, are answerable upon such covenant or agreement to the extent of the lands descended or devised to them, in the cases and in the manner prescribed by law.’’ We cannot but think that plaintiff has mistaken the purpose and effect of his statute. It first states that lineal and collateral warranties are abolished. It rather recites a fact than makes a change in the law. These warranties, lineal and collateral, were an
Assuming the facts stated in the complaint to be true, plaintiff had a claim against Ely from the delivery of the deed to the time of his death, and a surviving claim against his estate, but he never presented it or took any steps towards its establishment. The estate was amply able to pay all claims. If this had been presented and proved, the conceded facts show it would have been paid. The executors were charged with the payment of claims against the deceased, and they had ample means therefor, but this claim was never presented. No opportunity was ever given the estate or its representatives to allow or pay it. Plaintiff was never a resident of this state, and there was no administration of the deceased’s estate here.
