Shaffer v. Greer

Mr. Justice Sharswood delivered the opinion of the court, The early and leading case of Lessee of Gratz v. Ewalt, 2 Binn. 95, settled that the words “ grant, bargain and sell” in a conveyance of land in fee-simple, is, under the Act of May 28th 1715, sect. 6, 1 Sm. Laws 95, a covenant only against acts done or suffered from the grantor. The word “suffered” necessarily implies that it is not confined to the voluntary acts of the grantor, and it has never been doubted that he is liable on a judgment obtained against him by adverse proceedings. It is apparent that the same principle extends to and includes a tax assessed on the land during his title. Nor ought it to make any difference that such tax does not create personal liability. A tax on unseated lands would be such an encumbrance. And how does the case on this record differ from that ? It is unecessary to resort, in vindication of the rule, to the doctrine that the municipal, authorities, at the time the encumbrance was created, virtually represented the grantor, and he must be held to have given his assent. It is enough that he suffered a charge on the land — during his title — for which, as between him and his grantee, he was bound to indemnify him. Caldwell v. Moore, 1 Jones 58, is a case very much in point. It follows, too, we think, that no difference can be made between the work done before and after the deed. The lien was certain at the time of the conveyance — it related by the provisions of the statute to the commencement of the improvement: Blossom v. Van Court, 34 Missouri 390. There was no error, we think, in rejecting the offer of evidence complained of in the first assignment. It was not an offer to prove that at the time the deed was executed, it was part of the consideration that the grantee should be liable to pay the assessment. By the provision of the Act of 1715, the effect of the covenant implied by the words, “grant, bargain and sell,” can only be limited “by express words contained in the deed.” At most, the offer was to show knowledge or notice of the encumbrance, and an expression of the opinion of the grantor that the grantee would have to pay it. The grantee was not bound to deny this, even supposing that he knew the law. The evidence offered was, therefore, irrelevant, and was rightly rejected. Judgment affirmed.