Rector v. Waugh

1. The remedy by the ancient warranty real of the common law never had any practical existence in the United States; and the principles which were applied to it, having their origin in the feudal system, are not applicable to the covenant of warranty used in our system of conveyancing. 2. The common law implied no warranty, when partition was made between joint tenants and tenants in common. The doctrine, which makes an outstanding title bought in by one joint tenant or tenant in common, enure to the benefit of his co-tenants, is one of equitable cognizance, and courts of equity mould and apply it, so as to do justice among the tenants. 3. At common law, conveyances between tenants in common cannot operate by way of release, but must contain words of perpetuity to pass a fee. If one tenant in common conveys to another by a deed with warranty containing no such words, the warranty becomes extinct by the death of the grantee, and any after acquired title of the grantor does not, by virtue of it, enure to the heirs of the grantee.

Error to Marion Circuit Court. The opinion of the court contains a sufficient statement of the facts. 1. Tbe deeds of partition read in evidence were in tbe proper legal form to consummate a full and perfect partition between joint tenants or tenants in common. 4 Kent, 6, T, 8, 864, 369. 4 M. & S. 178. 10 J. R. 456. 18 ib. 79. Cbitty’s Blackstone, book 2, page 324. A mere release in sucb cases being tbe proper form to pass a fee simple estate, tbe warranty thereto annexed is a warranty of sucb an estate. 2. Those deeds, therefore, forever estopped the grantors from denying that tbe title passed by them. It was a univers al principle at common law, that a conveyance, no matter of what form, with general warranty, concluded and estopped tbe grantor to tbe extent of tbe estate conveyed. 2 Thomas’ Coke, top page, 347 (1 Am. from last Lend. ed.) notes (1) and (2). Ib. 288, 290, 293. Sbep. Touch. 181-2. 3 Taunt. 90. 4 M. & S. 178. 1 Salk. 276. Strange, 818. 3 T. R. 441. 2 Saund. 38 a note 4. 2 Rep. part 3, 58, Lincoln college case. Ib. part 4, 121, Bustard’s case. 2 Rep. part 3, pp. 59 and 63. 1 ib. 67, Archer’s case. Ib. 136, Chud-leigb’s case. Chitty’s Black, book 2, 301-2-3-4. Tbe same doctrine has been recognized in this country. 6 Watts, 63. 2 S. & R. 507. 14 Mass. 243. 10 Met. 192. 17 Mass. 249. 3 Pick. 52. 24 Pick. 324. 15 Mass. 307. 7 Greenl. 97. 8 Ohio, 226. 11 ib. 235. 3 ib. 116. 2 Humph. 386. 1 Sum. 263. 1 Peck, 24. 3 Leigh, 376. 9 Oranch, 52. 4 Dana, 251,129. 14 Johns. 224. 4 Bibb, 436. 12 Johns. 207. 11 ib. 91.' 4 Dev. & Bat. 54. 5 Pike, 693. 7 Conn. 214. 9 Wheat. 455. 10 Mo. 434. 29 Me. Rep. 183. 30 ib. 539. 3. The power of attorney from Thompson Bird to Bates was sufficient to authorize the latter to insert covenants of warranty in the deeds. 3 T. R. top p. 414. 15 East, 45. 21 Wend. 279. 2 Camp. 555. 1 J. J. Marsh. 291. 1 Ala. (new series,) 446. 1 Wash. C. C. R. 455. 15 Term. 160. 2 McLean, 549. 6 Hill, 337. 8 Mass. 181. 4. It is objected that the deeds were not formally excuted in the name of Thompson Bird as grantor ; that the signature should have been “Thompson Bird, by Moses D. Bates, agent.” The answer to this is, that the “ proprietors” are stated to be the granting parties. Bird was shown to have been one of those proprietors. Id certum est quod potest certum reddi'. 8 J. R. 885. 2 N. H. 310. Story on Agency, 183. 10 N. H. 470. 7 ib. 475. 3 Dana, 237. 5. Even if there was any defect in the power or its execution, the deeds of partition were subsequently ratified by Thompson Bird by implication. Express ratification is not necessary. 1 Liv. on Agency, 44-5. 2 G-reenl. 359. 2 Bos. & P. 301. 12 Wend. 525. 4 Pet. 83. 4 Binney, 231. 8 Cow. 586. 6. It is said that, as all parties to the partition lost the title which they divided among themselves, the mutual obligations which they held neutralized and destroyed each other, so that neither had a cause of action against the other. No such principle is known to the law ; but even if there were, the warranty does not derive its conclusive power from any cause of action it is supposed to give, but from its effect to seal the lips of the maker to aver any thing against it. 7 Mass. 21, 291. 8 Ohio, 226. 15 ib. 409. 4 Bibb, 436. 9 Cranch, 52. 9 Wheat. 455. 4 Dev. & Bat. 54. 2 Humph. 383. 7. The amount of consideration is wholly immaterial. 8 Mass. 200. 8. Even if it were conceded that Bates had no power to insert the express covenant of warranty, every partition implies and has annexed to it a warranty in law. 2 Thomas’ Coke (same ed. above cited) top pp. 527, 298, 300. 1 ib. 819, (K.) note 68, 838-9 and note T. 1 Shep. Touch. 185. 3 ib. 467. 11 Pick. 311. 3 Dana, 321. 3 John. 331. 4 Bibb, 355. 2 Sumn. 522. 5 Johns. 388. 3 G-reenl. 214. As between tenants in common, a purchase of an outstanding title by one enures in equity to all: an equity in this case entitles the plaintiffs to recover. See R. C. 1845, tit. Ejectment, section 13. 11 Mo. 437. An implied warranty at common law created an estoppel. 1 Touch. 203. Ib. 183, 40, 46-7. 2 Coke, top p. 288, note A. 3 Dana, 321. 3 John. 331. 3 Harr. (Del.) Rep. 103. 4 Kent, 260. Archer’s case, 1 Rep. 67. 9. It is well settled that an estoppel will sustain an ejectment. 4 Kent, 98. 11 Ohio, 478. 2 Dev. 177. 10. The defendant being a mere trespasser cannot set up an outstanding title in Bird, Bates and Rector, when they would not be allowed to set it up themselves. The plaintiffs rest their title upon two propositions. 1. That a conveyance of land with warranty has the effect at common law of passing all the after acquired estate of the grantor. 2. That upon this principle, the deed of 1819, from Bird and others to the plaintiff’s ancestor, passed to him all their after acquired title to the lot in controversy. The defendant controverts both propositions. I. As to the first, it is admitted that it is sustained by the decisions in Massachusetts and several other states, and these decisions are expressly put upon the old common law doctrine of rebutter incident to a real warranty. Somes v. Skinner, 8 Pick. Rep. 58. Pike v. Galvin, 29 Me. Rep. 183, where the American cases are all collected. It is denied, however, that this Massachusetts doctrine is part of the English common law, and the two following observations are submitted in support of this position: 1. The personal covenant of warranty used in the American system of conveyancing is not identical with the warranty real of the common law, and there is, therefore, no legal propriety in imputing to the former the effect that the ancient common law imputed to the latter. 2. If, however, the personal warranty is to be considered identical in its operation with the real warranty of the ancient law, yet the effect of passing an after acquired estate in all cases was never imputed by that law to the real warranty. The effect of a real warranty was to oblige the warrantor to defend the estate to which it was annexed ; and it was used either for defence or redress. For defence, when the attack came from the direction of the grantor; and this was called a rebutter and sometimes an estoppel. For redress, when the attack came from a stranger, either on voucher, or warranty of charter to recover a recompense in land of equal value. 2 Black. Com. 800-308. Two circumstances, however, were essential to enable the warranty to operate by way of rebutter, or in other words, to constitute the warranty a bar : 1. The estate to be barred must have been divested or turned to a right at the time or before the warranty was made. 1 Shep. Touch. 186-188. Lord Seymour’s case, 10 Rep. 96. 2 Thomas’ Coke, 537. Roll v. Osborn, Hobart’s Rep. 20. 2. The estate to be protected by the rebutter or estoppel must have been a continuing estate at the time it sought the protection of the warranty. Same authorities cited above. 2 Greenleaf’s Cruise, tit. 32, chap. 25, secs. 12-14. Cases will illustrate these rules. In the old law, there were estates without rights, and rights without estates. When a throne is usurped, there is a sovereign defacto, and a king without a kingdom. When a freeholder was turned out of his freehold by disseisin, and his place usurped by a stranger, a wrongful freehold, an estate de facto was created, and the lawful estate was displaced or turned to a right. The case put in Coke, 265, a, in the very passage usually cited in support of the new doctrine, is of a father and son. The father is disseised, and the son releases to the disseisor with warrantythen the father dies ; the land descends to the son, and this after acquired estate is barred by the warranty, or in other words, is transmitted from the son to his grantee by the previous conveyance with warranty. Here the estate barred is turned to a right by the disseisin at the time of the warranty, and the estate protected by the warranty is in being when the right to the land descends upon the son. If either had been otherwise, the warranty would not have barred, or in modern language, the after acquired estate would not have passed. The case from the Year Books, 17 Edw. HI., cited in 31 vol. Law Lib. 458, and Seymour’s case, 10 Rep. 96, prove both these propositions. The case of Hutchinson v. Prestioidge, 4 M. & S. does not conflict with any thing here said. There the lease and release of the tenant in tail produced a discontinuance of the estate tail, and turning that estate to a right (Co. Litt. 830, a,') made it capable of being rebutted. Doe v. Oliver, 2 Smith’s Lead. Cases, note of Am. editor, in which the cases upon this subject are collected. The case of Right v. Bucknett is reported in 2 B. & A. 278 (22 Eng. Com. Law Rep. 73.) If this view of the law be correct, it is manifest that the present warranty, giving it all the effect of a real warranty of the ancient law, cannot have the effect to pass the after acquired rights of any of the grantors in the partition deed of 1819, for the want of the very two conditions essential to give a warranty that effect at common law. 1. There was no estate either rightful or wrongful in Stephen Rector at the time the partition deed was made, and none was created by that deed. 2. The estate to be barred, or rather the estate to be transmitted, that is, the estate of Abraham Bird, the father, acquired by T. Bird, M. D. Bates and W. V. Rector, after the execution of the partition deed of 1819, was not displaced or turned to a right, when that deed’was executed. II. Assuming the Massachusetts doctrine to be the rule of decision in this state, several reasons exist to exclude from its operation the deed of 1819. First. The warranty in that deed is not within the reason or equity of the rule. Comstock v. Smith, 13 Pick. Rep. 119. Jackson v. Bradford, 4 Wend. 620. Blanchard v. Brooks, 12 Pick. 47. Mien v. Say ward, 5 Greenl. Rep. 230. The distinction is between a sale and a partition. In the first case, natural justice obliges the seller to guaranty the title; in the other, the same justice imposes upon the parties the implied limited warranty of the common law upon a partition among parceners, binding each part owner to the extent of his interest in the common title and no further. Upon a partition among coparceners with this limited warranty, if a stranger come with a paramount adverse title, and take the whole property, these warranties become extinct by mutually compensating each other; while if it take only part, the share, for instance, assigned to one, the other part owners are liable, not for. the whole, but each for his due proportion of the loss. Under the new rule, however, if it is to be applied to a partition deed, when this adverse title extends to the whole property, and descends upon one of the part owners (as in the present case,) the warranty, instead of being extinguished by the extinction of the common title, or even limited in its operation, immediately transmits the new title without compensation to the former co-tenants and throws the whole loss upon that part owner who has acquired the new title. The principles of natural justice, which, it is said, called this rule into existence, forbid its application to such cases. Bustard?s case, 4 Rep. 120. Co. Lit. 178, 6, 1T4, a. 2 Greenleaf’s Cruise, tit. 82, chap. 6, sec. 16, chap. 25, sees. 21, 22. The three partition deeds of 1819, may be considered as one assurance, and construed accordingly. Jackson v. McKenny, 8 Wend. 233. No consideration was given for the warranty, and the intention being manifest, the court ought to limit its meaning, notwithstanding the words are general, to that which was the subject of the partition. Sumner v. Williams, 8 Mass. Rep. 214. Mien v. Holton, 20 Pick. 463. Moore v. Magrath, Cowp. Rep. 9. Second. The warranty is of no legal validity, for the reason that the covenantee (S. Rice) is also one of the covenantors ; and being void as a covenant, is inoperative to pass the after acquired title. Nor are-there any proper words of perpetuity in the warranty, so as to enable it to enure to the heirs of the grantee. 1 Inst. 383 b. 2 Greenleaf’s Cruise, tit. 32, chap. 25, sec. 13. Third. If, however, the present warranty must be considered as embraced by the rule, the deed of 1819 cannot have any other or further effeet than it would have had, if the estate subsequently acquired had been vested in Bates, Bird and W. V. Rector, when the deed was executed. Patterson’s lessee v. Pease, 5 Ohio Rep. 192. If that had been the case, the deed could only have taken effect as a deed of bargain and sale, or as a common law release. Under the old law, the partition deed, as an original common law conveyance, like a common law exchange, must have been executed by the entry of the parties, and there is no pretence of any thing of that kind here. 2. Greenleaf’s Cruise, tit. 82, chap. 6, secs. 14 and 25. As a deed o'f bargain and sale, it is inoperative to the plaintiff for two reasons : 1. No consideration is expressed in the deed and none was proved. 2 Inst. 672. 4 Kent, 495. Jackson v. Fish, 10 J. R. 456. 2 Greenleaf’s Cruise, tit. 82, chap. 9, secs. 3, 4, 19 and 22. 2. It vested only a life estate in Stephen Rector for want of proper words of perpetuity, and of course, his heirs take nothing under the deed. 2 Black. 324. 1 Thomas’Coke, 390. Co. Lit. 96. 2 Green-leaf’s Cruise, tit. 82, chap. 22, secs. 6, 7 and 8. Ib. chap. 6, secs. 23, 24, 34. As a common law release, it is inoperative for the following reasons : 1. There was no joint tenancy between the grantee, Stephen Rector, and his grantors, Bird, Bates and W. Y. Rector. Stephen Rector had no estate in the land, and the deed, therefore, is of no validity as a common law release, for want of such an estate in him as qualified him to take a release. 2 Greenleaf’s Cruise, tit. 32, chap. 6, secs. 18-39. 2. If Stephen Rector had any estate, it was a tenancy in common, and it is old law, that the estate of one tenant in common cannot pass by a common law release to his co-tenant. And if other conveyances are used, the same words of perpetuity are necessary as in other cases. 2 Greenleaf’s Cruise, tit. 32, chap. 6, sec. 25. Fourth. The subsequently acquired title which is alleged to have passed to the plaintiff’s ancestor, and which is now sought to be recovered, vested in only two of the grantors in that deed, (Bates and Bird) — the conveyance from Bird’s heirs to Rector and from W. Y. Rector to Bird and Bates, constituting only one assurance — and this warranty binds neither of these grantors. It does not bind Bird for want of power in Bates, the attorney, to make a conveyance with warranty, and also, because the conveyance is in the name of the attorney, and not of the principal. Nor does it bind Bates, for want of apt words in the deed to oblige Bates. Glover, in reply to Leonard. The defendant’s counsel admits that perhaps every court in the Union has ruled against him the main point he makes, which is, that a deed of bargain and sale with general warranty will not estop the grantor and his assigns; but he avers that this is the result of judicial ignorance, and attempts to show that the English law was different. He admits that warranties barred and estopped or passed the after acquired title in England, but undertakes to show that these were ancient, not modern warranties, and concludes that the modern warranty is no bar. The English courts have never made this discovery. They continue to hold that a warranty is a bar, and passes an after acquired title. 1 Shep. Touch. 181, note 2. 2 Coke, top page, 289, note A. 4 M. & S. 178. 8 T. R. 18. When the law is well settled, it must stand, though the reason of it should not be obvious. He says no warranty barred any estate not displaced or turned to a right prior to its descent or fall, and cites Seymour’s case, where the warranty was only of a life estate. This case was not one in which the warrantor was to be barred, but a third person, a privy in estate. It is therefore not in point. The effect of the warranty upon privies in estate or in blood, re-versioners, remaindermen, issue in tail or heirs at law, was highly artificial and unreasonable, and has nothing to do with this case. There is no foundation in fact for the assertion that, in England warranties were only annexed to “ wrongful estates” or “ estates commencing by disseisin.” It is known that warranties, commencing by disseisin, were absolutely void, both at common law, and by statutes in affirmance thereof. The grantor they bound, not as warranties, but on account of the fraud which one could not aver against himself. But heirs, tenants in tail, reversioners, remaindermen, assignees, &c., were not bound by them. 1 Touch. 182, 196. The language attributed by the learned counsel to Lord Coke, that the word “ heirs” is necessary in releases between tenants in common by way of partition is not to be found in Ms books. Wbat be says is this : “If partition be made between parceners of land in fee simple, and for owelty of partition one grant a rent to tbe other, the word “ heirs” is not required to pass a fee.” 1 Coke, top p. 580. He does omit to say the same rule applies to tenants in common. But he adds, “ eadem ratio idem jus.” From the authorities, Kent is satisfied that tenants in common may convey to each other by release, without the word “ heirs.” 4 Kent, 6, 7, 8. The co-proprietors could have enforced contribution from the plaintiffs, for the purchase of the outstanding title, if they paid more for it than the first consideration. 11 Mo. Rep. 435. This was equity. But they wanted to seize on all the rights of the plaintiffs.