Prestwood v. McGowin

HARALSON, J. This action seeks damages for the breach of covenants, of seizin and warranty of title to land. An eviction or ouster, either actual or constructive, is essential to the breach. The eviction need not be with force. If it appears that the covenantee has. yielded to a paramount title, whether it was derived from hi's own grantor or from a stranger, and he gives up the possession, if he ever had it, or he becomes the tenant of him of superior title, or has purchased his title, that is sufficient as being a constructive ouster. So, again, if the covenantee has been denied or held out of possesssion, by one in actual possession under paramount title, at the time of the conveyance, this, would be a breach of the Covenant. — Griffin v. Reynolds, 17 Ala. 198; Gunter v. Williams, 40 Ala. 561; Copeland v. McAdory, 100 Ala. 553, 559; Moore v. Vail, l7 Ill. 185; Witty v. Hightower, 12 S. & M. 478; 2 Gr. Ev. 244; Tiedeman on Real Property, §§ 855, 860; Rawle on Cov. for Title, § 139. “The covenant for quiet enjoyment and of warranty [of title] are practically identical in operation; and whatever constitutes the breach of the. one covenant, is a breach of the. other. Esther extends to all lawful, outstanding adverse claims upon the. premises conveyed.” — Copeland v. McAdory, supra, 559; Tiedeman on Real Prop., § 855. In declaring a breach on a covenant of seizin, or of good right to convey, all that is necessary is, to negative the words of the covenant generally; but, as we have seen, this is not sufficient in declaring on the covenants for quiet enjoyment and .of warranty of title. — Copeland’s Case, supra. From the case cited it will be seen, that the complaint, to be in proper form, should contain separate counts and assignments for each of the breaches for which a recovery is sought. The complaint here joins the covenant of seizin and — 273 — warranty of title in one count as a basis; for recovery. Tlie demurrer as to tlie sufficiency of the complaint in averring a breach of the covenant of seizin and warranty is: “2d. Said complaint avers that the covenant of warranty and seizin as 'to the lands therein described, were broken at the time of making the saíne, but fails to aver that the plaintiffs were ousted from the lands described in the complaint, by an outstanding title, which was in existence at the time of making said covenant of warranty • and seizin, and fails to aver that said title was paramount to the title obtained from these defendants,” and 3d. Said complaint avers that the covenant of 'warranty to the lands therein described ivas broken, but fails to aver that plaintiffs were ousted from the lands "described in said complaint by an outstanding title which whs paramount |to the title which was obtained by these defendants,” The averments of the complaint are, that the defendants, the. grantors in the conveyance, covenanted with the grantees therein that they were lawfully seized in fee simple of said premises, that they were free from all incumbrances, and that they had a good right to sell and convey the same, and, — to employ the language of the deed, — “that we will, and our heirs, executors and administrators shall, warrant and defend the same [the grantees, naming them] their heirs and assigns forever, against the lawful claims of all persons.” The breach of 'covenant assigned is: “And the plaintiffs aver that said covenants of warranty and seizin have been broken in this, that at the time of making said covenant of warranty, said defendants had no title to [describing a part of the lands conveyed] and were not lawfully seized of said lands, but that one J. F. Anderson, had the title to said land, and was in the adverse possession of the same;” and the same averments were made in respect to four other parcels of said lands, alleged to be in the separate adverse possession of four other panties named. The 'complaint- as to this concludes': “And plaintiffs gyer, that all of said lands have been lost to them, — 274 — on account of tlie 'Superior and paramount title and possession of tlie above named persons, which said lands were of the value of $1,500. And plaintiffs further aver, that they have brought actions of ejectment 'in the circuit court of Covington county, Ala., against each of the above named parties to recover the lands held 'by them, and failed by reason of their adverse possession and superior title to that conveyed by the defendants to these plaintiffs.” We apprehend that under the principles above announced, these averments are full to the effect that the grantees, at the time the covenant was entered into, found the premises 'in tlie adverse possession of parties claiming under' a paramount title, and that they were prevented and held out of possession under such paramount title, existing at 'that time, which are good averments of breach of covenant both of seizin and warranty of title. As for the grounds assigned, there was no error in over: ruling the demurrer. As has appeared, the complaint counts, on breaches both of the covenants of seizin and warranty of title, claiming damages for the breach of each. The covenant of seizin, we have shown, does not run with the land, and is broken, if at all, as soon as it is made, and not by the occurrence of any future event, aiid it is unnecessary to aver an eviction or ouster, — all that is necessary being to negative the words of the covenant generally. — Copeland v. McAdory, supra. Mr. Rawle, in speaking of the covenants of seizin, for right to Convey, and against incumbrances, says: “The covenant is, that a particular state of thing’s exists at that time [the time of its creation], and if this be not (true, the delivery of the deed which contains such a covenant causes an instant breach; these covenants are, then, it is held, turned into a mere right of action, which is not assignable at law, which can be taken advantage of only by the covenantee or his personal representatives, and can neither pass to an heir, a devisee, nor a subsequent purchaser.” — Rawle on Covenants for Title, §§ 205, 214; Tiedeman on Real Prop., § 860. — 275 — It is to be inquired, what effeqt the breach of warranty of title, in the lifetime of the grantee, or one occurring after his death, has upon the right of action to recover damages for its breach, and the party entitled to prosecute the action ¡therefor. Discussing this question, Mr. Tiedeman says: “Like covenants -of quiet enjoyment, until a breach lias been committed, a covenant of warranty runs with the land into the hands of the assignee and heirs, and may be sued upon by the assignee or heir who is in possession when the breach occurs, whether the alienation is voluntary or involuntary. After a breach, there can be no assignment at common law, and it is still universally trué that the covenant then ceases to run with the land. But in' order that a covenant may run with the land to assignees, the grantee must, by the conveyance, acquire the .actual or constructive seizin. If at the time of the conveyance the grantor had neither title nor seizin, nothing passed by the deed, and the covenant remains with the grantee and . canmot be enforced by an assignee. For actual adverse possession under a paramount title at the time of conveyance is itself a breach of the covenant. * * * The assignee in possession at the time of the breach is generally the only person, who can maintain an action upon the covenant.” — Tiedeman on Beal Prop., § 860. Covenants for quiet enjoyment, of warranty of title and for further assurances are held to be prospective in their character, run with the land, and are not broken until eviction — Rawle on Cov. for Title, §§ 204, 205, 316. As to these covenants, — of warranty of title and for further assurances, — the same' author observes in the section last referred to: “Although from some expressions in the cases of Kingdon v. Nottle, [1 Maule & Selw. 355], and King v. Jones [5 Taunt. 418], it would seem ¡to have been thought that the modern covenants for title, like the ancient warranty, descended as to their benefit upon the heir, irrespective of the time at which the breach ¡took place, yet such a doctrine, has since been corrected [citing the cases], and it is now well settled that where the breach occurs in the lifetime of the ancestor or the testator, the right — 276 — to recover the consequent damages vests in his personal representative. * * * Where, however, the breach 'occurs after the death of the ancestor or ¡testator, the right of action must be exercised by tlie heir or devisee, on whom the damage has fallen.” As to the rights of the executor or administrator, the author further observes: “They are entitled to the benefit of the covenants for title, which could have been taken advantage of by the testator or intestate during his lifetime, and which were broken before his death)’ — § 317. In 8 Am. & Eng. Encyc. Law (2d ed.), pp. 155-6, citing in support thereof decisions from many States, it is said: “A covenant of general warranty, being one of those which runs, with the land, is intended for the benefit of the ultimate grantee in whose time it is broken, and he may maintain an action thereon in his own name. Covenants may run with the land, but damages arising from broken covenants do not; nor do they inure to subsequent grantees of the title. He, in whose time the covenant is broken, whether the grantee, or one who claims and holds under him, is the proper person ¡to bring an action for the breach of covenant.” — 1 Am. & Eng. Ency. Law (1st ed.), 511. So it seems, on the principles stated, supported by the weight of authority, that a right of aqtion for damages, for a covenant of warranty of title, does not pass with the land, if the grantee be dead a¡t the time the covenant is broken, in which event his executor or administrator is alone entitled to sue. — Authorities supra: 5 Ency. Pl. & Pr., 351, 355. The complaint in ¡this case shows, as we have seen, that the covenant of warraney of title, as well as that of seizin, — damages for the breach of which this suit Avas instituted, — were broken at the time of the execution of the conveyance to the grantees therein. They alone, and the personal representatives of such as have since died, and not their heirs, are entitled, therefore, to maintain the action. Two of the original grantees in the deed, and the heirs of others who died, brought the action, The heirs having no right tq — 277 — maintain the action, the principle applies that when several parties sue jointly as plaintiffs, ail must he entitled to recover or none can; and, if any one of them is incompetent to sue, all must fail, though the evidence may sustain the action as to one or more of them. — McLeod v. McLeod, 73 Ala. 43; Lovelace v. Hutchinson, 106 Ala. 418. The defendant’s objection to the introduction of the deed of defendants, to the grantees therein named, should have been sustained. It may be 'stated for the sake of another trial, if it should occur, that if the allegations of the complaint are true, the conveyance from defendants to plaintiffs, or a part of them, was executed while the lands were in the adverse possession of other parties, and while being good as between the. immediate parties to it, it was void as to the holders of such adverse possessions and the persons in privity with them, and will not support ejectment by the plaintiffs, — grantees in defendants’ deed, — against such adverse holders. Pearson v. King, 99 Ala. 125; Parks v. Barnett, 104 Ala. 438; Craft v. Thornton, 125 Ala. 391. It would follow, therefore, that the costs of plaintiff’s, suits in ejectment, against said adverse holders of the possession of said lands, if ever instituted, wherein it is averred judgments were rendered for defendants, cannot be recovered of these defendants. It may be added it does not appear that these judgments and the executions issued upon them had reference to the. lands in question. For the same purpose, let it be further said, that the question propounded to the witness, White, by the defendants on his cross-examination, namely, — “What was the difference in value, at the date of defendants’ deed- -to you, -of ¡the Thomason lands- you have testified about, and your own lands adjoining it?” — was improper, and the objection to it should have been sustained. It is not the value -of the land at ¡the time of the conveyance which is the measure of damages in a case of this character, but it is the purchase money paid with interest and costs of suit. — Clark v. Zeigler, 79 Ala. 346; Snodgrass v Reynolds, Ib. 452; Kingsbury v. Milner, 69 Ala. 502. The judgment is reversed and the cause remanded.