Carter v. Executors of Denman

The Chief Justice.

This action is brought to recover damages for the breach of a covenant, contained in a deed of bargain and sale, of certain real estate, made by Matthias Den-man, the defendant’s testator, to Samuel Miller, bearing date on the 16th of January, 1833. The declaration charges, that “ the said Matthias Denman did, in and by the said indenture, for himself, his heirs, executors, and administrators, covenant and grant to and with the said Samuel Miller, his heirs and assigns, that he, the said Matthias Denman, would warrant, secure, and for ever defend the said land and premises unto the said Samuel Miller, his heirs and assigns, for ever, against the lawful claims and demands of all and every person and persons, freely and clearly freed and discharged of and from all manner of encumbrances whatever.” The declaration further states, that the premises were mortgaged by Samuel Miller, the grantor, and were subsequently sold, under a decree of the Court of Chancery for the foreclosure of that mortgage, by the sheriff of the county of Essex, to Nicholas Arrowsmith, and by Arrowsmith conveyed to the plaintiff, by deed dated the 30th of September, 1835. The breach of the covenant assigned is, that Mary Pierson, the widow of Robert Pierson, who was seized in fee of the land prior to the conveyance and covenant by Denman to Miller, has recovered seizin of one third part of . the said premises, for her dower therein, as the widow of the said Robert Pierson, with damages for the detention, and holds the said third part in severalty against the plaintiff.

To this declaration the defendants demur, assigning several special grounds of demurrer.

Two questions are necessarily involved in the consideration of this demurrer, viz: 1. Has the plaintiff aright of action upon the covenant set out in the declaration ? 2. If he has, is the declaration in due form ? Although the counsel of the defendant limited his argument solely to the special grounds of demurrer, yet the court cannot render judgment upon the de *270 murrer for the plaintiff without affirming the declaration to be good in substance, as well as in form. -It would be worse than idle to discuss and settle the form, of pleading, if the plaintiff have no right of action whatever. Though the demurrer be special, the pleading may be avoided for defects in substance.

• The plaintiff claims, as assignee of the land, against the executors of the grantor; and he claims not by deed directly from the covenantor, but through an intervening sheriff’s sale. To maintain his right of action, he must show — 1. That the covenant is personal, binding on the personal representatives of the covenantor. 2. That the covenant runs with the land, in the nature of a real covenant, and that it passed to him by the assignment or conveyance of the land.

The character, the office, and the operation of the ordinary covenants for title are well settled. They are all personal covenants, binding on the personal representative of the covenantor, and not real covenants, in the sense of the ancient feudal law. Three of them, viz: 1. That the grantor is lawfully seized ; 2. That he has good right to convey; and 3. That the land is free from encumbrances, are strictly personal covenants. They do not run with the land or pass to the assignee. They are all in language de presentí, having respect to the date of the deed, and if not true, are broken as soon as made. If, at the date of the. deed, the grantor is not lawfully seized, of if he has not good right to convey, or if the land is not free from encumbrances, the covenant is broken, and a right of action vests eo instanti in the grantee. The covenant broken becomes a chose in action, which, at the common law, is not assignable. The two remaining covenants of the deed, viz. that the grantee shall quietly enjoy, and that the grantor will warrant and defend the title, are prospective, both in their language and operations. An eviction or disturbance of possession is necessary to constitute a breach of them. They are, therefore, in the nature of real covenants; they run with the land conveyed, descend to heirs, and vest in assignees. 4 Kent’s Com. (2d ed.) 471, cases cited in note c. 472, and cases cited in note c., Bartholomew v. Candee, 14 Pick. 168 ; Wheelock v. Thayer, 16 Pick. 68 ; Thayer v. Clemence, 22 *271 Pick. 494 ; Clark v. Swift, 3 Metc. 390 ; Tabb v. Binford, 4 Leigh 132 ; Chapman v. Holmes, 5 Halst. 20 ; Garrison v. Sandford, 7 Halst. 261; Lott v. Thomas, Penn. 406.

And to maintain an action on the covenant of warranty or for quiet enjoyment, it is not enough that there is a defect of title, or that the grantor had not a right to convey, or that there are outstanding encumbrances. There must be an eviction, or what is tantamount to an eviction, by title paramount to the plaintiff’s, originating before or at the time of the grant to the plaintiff. Waldron v. McCarty, 3 J. R. 471; Kent v. Welch, 7 J. R. 258; Kortz v. Carpenter, 5 J. R. 120; Vanderkarr v. Vanderkarr, 11 J. R. 122; Kerr v. Shaw, 13 J. R. 236 ; Webb v. Alexander, 7 Wend. 281 .

An actual eviction, however, by process of law, has been held, in recent cases, not necessary to sustain an action, either upon a covenant of warranty or for quiet possession. Thus, in an action upon a covenant of warranty, it was held sufficient that the covenantee had brought an action to recover possession, and had failed, or that there was in fact a superior title, which was asserted by offering the premises for sale, and to V ich the covenantee had yielded and purchased the title. Pit kin v. Leavitt, 13 Verm. 379 ; Loomis v. Bedel, 11 New Hamp. 74.

So if, on a valid claim being made under a title paramount, the plaintiff voluntarily yield up possession. Greenvault v. Davis, 4 Hill 643 .

All the eases, however, go upon the ground, that, to sustain an action upon either of the two last mentioned covenants, there must be either an actual eviction, or a disturbance of title or possession by paramount title, tantamount to an eviction.

If, howevér, there be an ouster or eviction of the plaintiff from a part of the premises, it is enough to maintain the action. Ma nston v. Hobb, 2 Mass. 438 ; Gore v. Brazier, 3 Mass. 545 ; Townsend v. Executors of Van Courtland, 6 Cowen 123.

Inasmuch as the covenant runs with the land, it is immaterial whether it pass by deed from the grantor or by a sheriff’s *272 sale. The sheriff’s deed, under our statute, passes all the interest of the mortgagor at.the date of the mortgage, or, if made under a judgment at law, it passes all his interest at the rendition of 'tbe'judgment. He is as much the assignee of the covenant as though the conveyance were made by the covenantee himself. McCrady v. Brisbane, 1 Nott & McCord 104.

The covenant set out in the declaration is peculiar. It is that the covenantor will warrant, secure, and for ever clef end the land and premises against lawful claims, fully and clearly' freed and discharged of and from all manner of encumbrances whatsoever. Is that a covenant of warranty, or is it merely a covenant against encumbrances? If the latter only, it is not assignable, and the plaintiff can have no right of action under it.

It is clear that the encumbrance, by virtue of which the plaintiff has been evicted, existed at the date of the deed from Denman to Miller.

Bower is an encumbrance, and its existence is a breach of a covenant against encumbrances. So is any outstanding life estate or term of yéars. Every right to or interest in the land granted to the diminution of the value of the land, but consistent with the passing of the fee, must be deemed in law an encumbrance. Mitchell v. Warner, 5 Conn. 497, 527 .

There is an anonymous case, decided at Mich, term, 29 Eliz., reported by Sir Francis Moore, 249, pl. 393, as follows: “ One made a lease for years. The lessee devised the term to his wife, for as many years as she should live, and then to his son. The- woman purchased the inheritance, and then sold, with covenant that the land was discharged of all former encumbrances, and gave bond to perform the covenants. The woman died before the expiration of the term. The son claimed the term. In debt on the covenant, it was adjudged that the possibility in the son was a forfeiture of the obligation of the wife, because it was an encumbrance.

So a term is devised to A. for life, in case she lives sole, and after to B. A. purchases the inheritance of J. S., who covenants to discharge the tenement of all former charges, and afterwards A. marries.- Upon this B. enters. A. sues J. S. upon *273 the covenant, and adjudged that it lies, for that this possibility to have the residue of the term upon A’s marriage, is a former charge. For the will was before the covenant, and the possibility shall awake, and have relation before the marriage. 14 Viner’s Ab. 352, “ Encumbrance” A.

Nor does dower become an encumbrance only after the death of the husband. An inchoate right of dower is a subsisting encumbrance, and not a mere possibility or contingency, which is to be deemed an encumbrance only when it becomes consummate. Porter v. Noyes, 2 Greenl. 22 ; Jones v. Gardner, 10 J. R. 266 ; Prescott v. Trueman, 4 Mass. 627 .

So that the claim of dower of Mary Pierson was a subsisting encumbrance upon the premises, and not a mere possibility at the date of the deed from Denman to Miller, although her husband was then living, and continued to live till after the plaintiff acquired title. If, then, the covenant in question is a mere covenant against encumbrances, it was broken as soon as made, and, being a mere chose in action, was not assignable.

But the covenant in question is more than a mere covenant against encumbrances. The grantor covenants not that he will warrant ‘that the premises are free of encumbrances, but that he “ will warrant and for ever defend the premises against all lawful claims, freed and discharged of all encumbrances.” The language of the covenant is prospective, not in presentí; he will warrant and for ever defend. The' first clause is clearly a general covenant of warranty of the most comprehensive and explicit character. The second clause of the covenant respecting encumbrances, if it do not enlarge, cannot narrow the operation of the covenant. In its operation, it can be no more than a covenant against encumbrances, joined with a covenant of general warranty. This was the construction given to a somewhat similar covenant by the Supreme Court of New York, in Hall v. Dean, 13 J.R. 105.

Regarding the deed as containing these two covenants, it is clear that the covenant against encumbrances was broken immediately on the execution of the deed. The mere existence of the inchoate right of dower was a breach of that covenant. The covenantee was at liberty to sue for damages for a breach *274 of the covenant upon the mere existence of the encumbrance, in which event his damages would have been nominal merely ; or he might have satisfied the claim for dower at a fair price, and the price thiis paid would have been the measure of damages. Prescott v. Trueman, 4 Mass. 627 ; Delavergne v. Norris, 7 J. R. 358; Bean v. Mayo, 5 Greenl. 95; Garrison v. Sandford, 7 Holst. 261.

The right of action upon that covenant remained in the grantee, and did not pass by the assignment. And if the encumbrance had remained outstanding against the premises, without being enforced, no action could have been maintained by the assignee on account of its existence. He could have maintained no action on the covenant against encumbrances, for it did not pass by the assignment; nor on the covenant of warranty, for that covenant is broken only by an eviction. But the dower is no longer a mere encumbrance. The doweress has enforced her claim. The plaintiff has been evicted from part of the premises by legal process. The covenant of warranty is therefore broken, not by the existence of the encumbrance, but by the eviction of the plaintiff. The ground of action upon the two covenants, though originating in the same cause, to wit, the dower, is quite distinct. The action upon the covenant against encumbrances is founded upon the existence of the encumbrance; the action upon the covenant of warranty is founded upon the eviction of the plaintiff. In the one case, the cause of action arises, and the statute of limitations begins to run from the eviction, in the other from the date of the covenant. The encumbrance by dower is precisely analogous, in this respect, to an encumbrance by mortgage. The existence of the mortgage is a breach of the covenant ágaint encumbrances; and if the mortgage be foreclosed, and the grantee evicted, there is a breach of the covenant of warranty. The original grantee may have his remedy upon both of the covenants, or either. The assignee can have his remedy only for the eviction. Delavergne v. Norris, 7 J. R. 358; Heath v. Whidden, 11 Shepley (24 Maine R.) 383; Clark v. Swift, 3 Metc. 390 .

In Heath v. Whidden, the action was upon a warranty *275 deed, with the usual covenants, made by the defendant to the father of the demandants. At the date of the deed, the premises were subject to a mortgage, by virtue of which the plaintiffs had been evicted. The action was founded upon a breach of the covenant against encumbrances. And the statute of limitations being set up in bar, the court permitted the plaintiffs to amend their declaration, so as to ground their action upon the eviction. The court say, “ it is in the election of the subsequent grantee of the mortgagor, with covenants against encumbrances and for quiet enjoyment, to elect to redeem, as under the former, or to suffer an eviction, as under the latter. If ho redeems, his right of action will commence from the time of such redemption. If he waits for an eviction, his right of action will then take place.” The position, that if the covenantee redeem, his right of action under the covenant against encumbrances will then take place, if that were intended, is clearly erroneous. The right of action accrues immediately on the making of the deed. The redemption merely determines the damages to which the plaintiff is entitled.

In the present case, the covenant upon which the action is founded being a covenant of warranty, which passed by assignment, and a breach of the covenant being shown by the allegation of an actual eviction of the plaintiff from part of the premises by process of law, the plaintiff shows in himself a substantial cause of action.

It remains to inquire whether the declaration is sufficient, in point of form, in the several particulars assigned as the grounds of special demurrer.

1. It is not necessary that the premises conveyed by the deed should be particularly described. It is true that the covenant passes with the land, and that the premises must be designated. They are so with convenient certainty, by a general description and by reference to the covenant in which they are described. In this respect the declaration conforms to approved precedents.

2. It is not necessary to aver formally that the plaintiff is the assignee of the covenant. The facts, which in law constitute him the assignee, to wit, that the title of the land, with *276 which the covenant runs, is vested in the plaintiff, are set out with clearness, precision, and certainty. This is all that is essential in good pleading. It is not necessary to aver a mere inference or conclusion of law.

2. The statement of the breach must necessarily be governed by the nature of the covenant. To assign the breach negatively or affirmatively in the words of the covenant, or in words coextensive with the import and effect of it, will in many cases, but not always, be sufficient. Where the covenant is to do or forbear a particular act, it is sufficient to assign the breach in the words of the contract. So in an action upon the usual covenants of a deed, that the grantor is seized, or that he has good right to convey, it is sufficient to assign the breach generally, by averring that the grantor was not seized, or that he had not good right to convey. But in an action upon a covenant of warranty, it is not enough to aver, in the negative of the covenant, that the grantor did not warrant and defend the premises. The declaration must go farther, and. show an eviction by a person having lawful title paramount to that of the plaintiff. And the same rule applies to covenants for quiet enjoyment and against encumbrances. 1 Chit. Pl. (7th ed.) 365, 368 ; Platt on Cov. 308, 311, 328 ; Mitchell v. Warner, 5 Conn. 497 ; Townsend v. Morris, 6 Cowen 123.

The concluding clause of the assignment of the breach, “and so the plaintiff in fact saith, that the defendants have not kept the said covenant,” &e., is merely formal and unnecessary. The breach had already been fully an'd specifically assigned. 1 Chit. Pl. (7th ed.) 409.

Nor is it necessary to aver a breach of the covenant by Den-man, or that the covenant was not kept by him. The breach occurred after his death. The facts stated in the declaration, if true, make it abundantly clear that the covenant was broken. The action is against the executors, and the formal averment, that they refuse to keep the covenant, is enough.

The declaration conforms to approved precedents in all the particulars specially assigned-as grounds of demurrer. 5 Wentworth’s Pl. 53, 63; 2 Chit. Pl (7th ed.) 543, 545, 546, 519,

*277 Let the demurrer be overruled, with leave, if desired, to the defendant to plead upon the usual terms.

Nevius, J., concurred.

Ogden, J. The facts set out in the count demurred to are as follows: That, on the 16th of January, 1833, Matthias Denman conveyed to one Samuel Miller, by deed with a covenant, as well of warranty as against encumbrances, a tract of land in Springfield, in the county of Essex, in this state. That, on the 4th day of September, in the same year, Miller, the grantee, together, with his wife, mortgaged the premises to Nicholas Arrowsmith and Eleanor Wilson, executors of the last will of James Wilson, deceased, to secure the sum of §1500, with interest, in one year from the date of the deed of mortgage. That, on the 3d of October, 1844, the mortgagees filed their bill for a foreclosure of the equity of redemption in the said premises, and for a sale ; and that, on the 23d of June, 1845, the sheriff of the county of Essex, in pursuance of an execution issued in the suit, conveyed the said premises unto Nicholas Arrowrsmith ; and that, on the 30th of September, 1835, Arrowsmith conveyed them to the present plaintiff, who entered upon the possession. That, prior to the conveyance by Denman to Miller, one Robert Pierson, the husband of Mary Pierson, had, during their coverture, been seized in fee of the said premises. That, on the 1st of February, 1847, and after the decease of Denman, the said Robert Pierson died; that Mary Pierson survived him, and that, by due course of law, she has recovered her dower in the said premises, and has been put in possession thereof in severalty, and that the plaintiff has thus been evicted of a third part of the premises, by metes and bounds.

The present action is brought by the transferee from Arrowsmitb, upon the covenant of warranty contained in the deed from Denman to Miller, against the executors of Den-man. A special demurrer has been filed by the defendants.

Upon a careful examination of this case, and of such of the numerous authorities cited in the argument thereof, as have been within my control, I am of opinion-—

*278 First. That the plaintiff being in possession, as a transferee from the purchaser of the premises in question, when sold under an execution upon the decree of foreclosure and sale, is in of the same estate as Miller was when he executed and delivered the mortgage to Wilson’s executors.

Second. That the said mortgagor would have been entitled to a recovery, in an action upon the covenant of warranty, against Matthias Denman, if then living; or if then dead, against his personal representatives, if the eviction, which is set forth in the declaration in this cause, had taken place while he, the mortgagor, owned the premises.

Third. That the estate of dower, not becoming complete in Mary Pierson until after the decease of Matthias Denman, and also after the plaintiff had purchased the whole premises conveyed in Denman’s deed with warranty, and had entered upon the possession thereof, the breach of covenant now complained of did not happen during the ownership or possession of any alienee intermediate from Denman ; and hence, if the present plaintiff cannot successfully maintain an action against the personal representatives of Denman, the covenant will be entirely avoided, although a right, which was an encumbrance when the covenant was made, and which has ripened into an estate in a third part of the premises, paramount to that which Den-man had therein at the time of his alienation, was then inchoate.

Fourth. That the covenant of warranty, which runs with the land, vested in the plaintiff as an incident to the land conveyed to him, without any formal assignment of it; and hence, that an averment of an assignment was not required for a good count. It follows, from the facts stated, and it need not be otherwise set out or proved.

Fifth. That the declaration is sufficient, and is not obnoxious to any of the objections that are alleged against it in the special causes of demurrer shown.

The result of my examination is, that, in my judgment, the plaintiff has a good cause of action on the covenant of warranty declared upon against the defendants, as executors of Matthias Denman, deceased, and that the demurrer should be overruled, with costs.

Cited in Kellog v. Platt, 4 Vr. 330 ; Andrews v. Rue.5 Vr. 406 . jfecei' Ex’r v. Storm, 11 C. E. Gr. 376; Wheeler v. Kirtland, 12 C. E. Gr. 635