Garfield v. Williams

After argument, the opinion of the Court was pronounced by Prentiss, J. Notwithstanding the recent decision in Kingdon vs. Nottle, 4 Maule & Selw. 53, a covenant of seizin is a per328 S0na^ covenant which does not run with the land, or pass to the as-' signee, like the covenant of warranty. If the covenant of seizin is not true, there is a breach of it, entire and complete, as soon as deed is executed, and it becomes a chose in action, which is not assignable. This is the doctrine of the common law; and the decision in the case referred to, which recognizes the right of the assignee to sue upon the covenant of seizin, stands opposed not only to all the cases in this country on the subject, but to the general current of English authorities. If, therefore, there was a breach of the covenant upon which this action is brought, it accrued, and was perfect, the instant the deed was executed, and the right of action upon the covenant was vested in the plaintiff, and did not pass to his assignee. Whether there was a breach of the covenant or not, depends upon the question whether or not the defendant had such an estate in the lands as he covenanted that he was seized of. The covenant is, that he was seized of an indefeasible estate in fee simple.. In the case agreed upon by the parties, it is admitted, that he had no such estate, or, indeed, any valid title whatever to. the lands. It is stated, however, that he claimed to own the lands,* and put the plaintiffinto possession of them under him, under an agreement for the purchase of them, who held possession under the agreement until the defendant executed the deed to him. This, it is insisted, is sufficient evidence of a seizin in fact by the defendant, and enough to satisfy the covenant declared upon. It is true, that in the case of Marston vs. Hobbs, 2 Mass. 433, which was much pressed upon the Court in the argument, it is held, that in an action upon a covenant that the grantor is seized in fee, it is not necessary to. shew a seizin under an indefeasible title, but a seizin in fact is sufficient; and if the grantor, at the time he executes the deed, has the possession of the premises, claiming the same in fee simple, adverse to the owner, he is seized in fee and has a right to convey. But it is to be observed, that in the case cited, a distinction is taken between a covenant that the grantor is “ lawfully seized in fee,” and a covenant that he is seized of an indefeasible estate in fee simpleand this distinction between the two covenants is noticed and recognized in the case of Abbott vs. Allen, 14 Johns.Rep. 248; Admitting the doctrine in the case relied upon, and that the defendant, on the facts stated, maybe considered as seized in fact at the time he executed the deed, yet he was not seized of an indefeasible title according to his covenant, and, consequently, there was a breach of the covenant, and a right of action vested in the plaintiff on which he is entitled to recover. The only remaining question, then, is, as to [329] ¡¿he rule of damages which ought to govern the case. In Prescott vs. Trueman, 4 Mass. 627, it is laid down by Parsons, C. J, ¡that in an action on a covenant that the grantor has good right to convey an indefeasible title in fee, the plaintiff can recover nominal damages only, unless the estate conveyed has been defeated, or the right to defeat it has been extinguished. In an action on the covenant of seisin, however, the general rule is where there was entire want of seisin in the grantor, and no title passed to the grantee, to allow, as damages, the consideration paid for the land and the interest upon it. In the present case, the estate which the deed purported to convey has not been defeated, nor has the plaintiff suffered any actual damage by being obliged to purchase in or extinguish the title of the owner. On the contrary, the plaintiff and his assignee have possessed the lands without disturbance, under the conveyance from the defendant, until, by length of time, an indefeasible title, as the presumption is, has been acquired under the statute of limitations. On these facts the plaintiff, in any view of the case, though there was a breach of the covenant, and a legal cause of action accrued to him, is entitled to recover nominal damages only. Davis, for plaintiff. Fletcher, for defendant. Judgment of the county court reversed, and judgment for the plaintiff for nominal damages.