Kelley v. Seward

The opinion of the court was delivered by Royce, J. In 1857, when Daniel Kelley made the trade with Hulett to move the five sheds, he owned the four northern sheds, and Alonzo the south one, about which this controversy has arisen. There was no written conveyance of any of the shqds. The plaintiff claims title to the shed in question by virtue of a purchase made from Alonzo. The defendant’s evidence tended to show that Daniel Kelley, at the time he made the trade with Hulett, assumed to own all the sheds and conveyed all of them but the two which he reserved, to Hulett for removing them, and that Hulett did not then know that Alonzo claimed to own one of them. Hulett let one Ormsbee have the south shed for helping him remove them, and in 1860, Ormsbee sold the shed to one Coppins, under whom the defendant claims title. In November, 1859, Daniel Kelley died, and' one of his sons was appointed administrator of his estate, but his property was divided among his children and his widow by agreement. In December, 1859, Alonzo swapped the south shed (which was his) with the administrator for one of the sheds which Daniel Kelley owned under his trade with Hulett. Immediately after that all the right of the heirs to all the sheds except .the one which was then owned by Alonzo was sold to one Burnett; and in 1872 Burnett sold his right to Alonzo, and in 1873 Alonzo sold the south shed to the plaintiff. [439] It is not claimed that either Hulett or Ormsbee acquired any title to the south shed under the trade that was made between Daniel Kelley and Hulett, but it is claimed that the title that the administrator of Daniel Kelley obtained to this shed by the exchange that he made with Alonzo inures to the benefit of the defendant, and makes a title in him which is superior to the title of the plaintiff. This claim is based upon the fact that in the conveyance by Daniel Kelley there was an implied warranty of title, and that all parties claiming under him are estopped from denying that he had a title at the time he made the conveyance. The different conveyances of the shed were by parol, but applying the same rule that would apply if the conveyances had been by deed, the question whether the deed would estop the grantor from setting up an after-acquired title would depend upon the quality of the deed. The general rule is that to estop the party from setting up such title there must be a covenant of general warranty, or what is equivalent to it, in the deed ; and that a warranty against all claiming under the grantor applies to those existing at the time, and not to those afterwards acquired. 3 Hilliard Real Prop. 615 ; Bigelow Estoppel, 334. And the reason for the rule in such case has sometimes been said to be to avoid circuity of action — that inasmuch as the grantor was liable on his covenants, to avoid the necessity of an action upon the covenants, courts would treat the covenants as an estoppel against setting up any such title. But it does not follow that the plaintiff is es-topped by virtue of the parol conveyances that were made, even though he might have been estopped if the conveyances had been by deed, and the deeds properly recorded. The shed in question was originally the property of Alonzo, and the case does not show any actual or constructive notice to the plaintiff that the defendant, or those under whom he claims, ever claimed to own it. The plaintiff was in possession at the time the alleged trespass was committed, and the court did right in holding that if the facts which the defendant’s evidence tended to show had been found, they would not constitute a defence. It is now claimed, although the question does not appear to have been made in the County Court, that trespass on the freehold will [440] not lie. The argument in support of this claim is based upon the assumption that the shed is personal property. Every reasonable intendment is to be made in support of the judgment, and the facts found are consistent with the theory that the shed was so attached to the realty as to become a part of it. So that there is no error apparent in the record that should reverse the judgment, and it is affirmed.