Western Development & Realization Corp. v. Hext

Mr. Justice Young delivered the opinion of the court. Thomas Hext, by warranty deed, conveyed certain real property in the city of Denver to the Western Development and Realization Corporation on the 9th day of November, 1937, for a consideration of $10,000. Among other recitations in the deed was the following: “And that the same are free and clear from all former' and other grants, bargains, sales, liens, taxes, assessments and encumbrances of whatever kind or nature soever; and the above bargained premises in the quiet and peaceable possession of the said party of the second part, its successors, against all and every person or persons lawfully claiming or to claim the whole or any part thereof, the said party of the first part shall and will warrant and forever defend.” During the same calendar year, 1937, the above-named grantee conveyed the property to Burkhardt and Sigman, excepting in that conveyance the lien of taxes for the year 1937, due and payable on January 1, 1938. On April 25, 1938, Sigman and Burkhardt paid the 1937 taxes in the amount of $503.82. It is neither alleged nor contended that the Western Development and. Realiza *314 tion Corporation, plaintiff in the district court, either reimbursed or is obligated to reimburse Sigman and Burkhardt for the taxes so paid. The foregoing is a statement of the facts out of which the controversy arises. The Western Development and Realization Corporation predicates its right to recover on the covenant in the deed and on section 224, chapter 142, ’35 C.S.A., which provides as follows: “As between the grantor and grantee, where there is in the instrument of conveyance no express agreement as to which shall pay the taxes that may be assessed on the land conveyed, if such conveyance is made between the thirty-first (31st) day of December and the first (1st) day of the next July, then the grantee shall pay the taxes for the year in which the conveyance is made. But if the property is conveyed between the thirtieth (30th) day of June and the first day of the next January, then the grantor shall pay the taxes for the year in which the conveyance is made.” At the close of the testimony on the part of plaintiff and under the foregoing factual situation the defendant moved for a nonsuit, which motion the trial court granted. The sole question is whether or not under the covenant in the deed and the statute quoted the plaintiff, without showing damage, is entitled to recover. Section 18, chapter 40, ’35 C.S.A., is as follows: “Covenants of seisin, peaceable possession, freedom from incumbrances, and of warranty, contained in any conveyance of real estate, or of any interest therein, shall be held to run with the premises, and to inure to the benefit of all subsequent purchasers and incumbrancers.” The general law with reference to suits on covenants is set forth in 15 Corpus Juris, page 1257, section 77 (21 C.J.S., Covenants, §82), as follows: “As a rule, where land conveyed with real covenants has passed by subsequent conveyances through the hands of various covenantees, only the last covenantee or assignee in *315 whose possession the land is when the covenant is broken can sue for its breach, and his right of action extends to any or to all of the prior covenantors.” This in effect was our holding in Wheeler v. Roley, 105 Colo. 116, 95 P. (2d) 2. While the land remained in the hands of plaintiff it sustained no damage from a breach of its grantor’s covenant, and, having sold the land and conveyed it by deed containing an exception that protects it from payment of the taxes as against its grantee, the plaintiff not only has sustained no damages but will sustain no damages in the future. We think the action of the court in granting the nonsuit and entering judgment for costs in favor of defendant was proper. Judgment affirmed. Mr. Chief Justice Francis E. Bouck, Mr. Justice Knous, and Mr. Justice Burke concur.