Frost v. Earnest

The opinion of the Court was delivered by Sergeant, J. — This lease was made in the year 1833. By the act of 25th March, 1831, Washington street had been authorised to be widened, and provision was made to compensate all “ owners of property,” for damages that might thereby accrue to them, by proceedings before a jury in the usual manner. There existed, therefore, at the time of the lease, a liability in the property to be taken for a street; but as the additional quantity requisite for that purpose, might be taken from the other side of the street, or from both sides, it was uncertain whether any part of the ground, would be taken, or if any part, how much. It must be deemed to be an existing liability, but contingent. The question is, whether a covenant for quiet enjoyment against eviction by the defendant or his assigns or any other person, is broken by the occupation of the. property by the county for the purpose of a. street, when the law has provided that on so doing, compensation shall be made to the owner of property thus taken. The covenant for quiet enjoyment is designed to indemnify the vendee for a lawful eviction by reason' of defect of title in the vendor, arid any disturbance thereupon. It is one of the covenants for title which have been introduced in later times in lieu of the ancient warranty. Platt. Cov. 304,312. This covenant is employed in conveyances in fee-simple as well as of lesser estates, and is founded on the principle of justice, that the vendor having received the value should re-imburse to the vendee that value if the latter should lose the premises by reason of a defect of title in the vendor. But if the vendee lose the' premises, not because of defect of title in the vendor, but on the very ground that the vendee has a good title from the vendor, which the state, by virtue of its sovereign power, authorises to be taken from him, stipulating to pay him for it, on what principle can he have recourse to the vendor on such a covenant Í If the covenant is broken, the vendor is liable upon it, though he may neither have received nor been entitled to receive any thing: for the vendee’s remedy in that case does not depend on the vendor’s having received any compensation; it arises by the mere fact of the eviction and loss of the property. The case then would present the aspect of a vendee, who, on eviction, is entitled to be paid the value of his loss by the party evicting him, and at the same time may recover from the vendor for breach of covenant. This cannot be: the covenant never was designed for such an event, and is not applicable to it. It resembles the case of eviction of the vendee by a third person who is a tort-feasor. He may have his action against such tort-feasor ; and therefore it has been decided that the vendor is not liable on this covenant. The same reason applies when the vendee is ousted by the sovereign power of the state under its right of’ eminent domain, or under reservations in the first settlement of the country, exercised according to the constitutional injunction of compensating every man whose property is taken for [91] the public use. The remedy of the vendee is to look to the legislative provisions made for his indemnity, and not to the covenant for quiet enjoyment, which was introduced into conveyances for purposes entirely different. It is not material to allege that the plaintiff received by the award of the jury more than his proportion of the damage which accrued. That does not go to establish the breach of the covenant, which is the only matter in issue in this suit. If the plaintiff was entitled to a portion of the whole assessment of damages, he ought to have obtained it, either from the jury of assessment, or from the Court of Quarter Sessions, on objecting to the report of the jury, and having a new assessment, or by an apportionment by the Court. There cannot be a doubt, but a tenant-is an “ owner of property” within the act, and entitled to comp&nsation for any damage he may have sustained, as well as the reversioner, or other legal claimants and incumbrancers. But it is his duty, like that of all other claimants, to attend to his rights in due season, and to bring them before the legitimate tribunal which is to decide upon them. The Court of Quarter Sessions exercises constantly a supervisory power over the proceedings of juries who assess damages for lands taken for streets and roads, and corrects their errors and omissions, if duly applied to by the parties interested. In this suit, however, the only question is, whether the covenant of the defendant is broken; and that turns on the character of the covenant in its legal interpretation, and what constitutes a breach. On principle as well as authority, we think there was no error in the decision of the Court below. Judgment affirmed.