Woods v. Ely

Kellam, J. The plaintiff, who is now appellant, alleges the following facts as his cause of action: In March, 1882, one R. S. W. Ely, then and until his death a resident of the state of Illinois, made, with others, a warranty deed, with full covenants, of certain lands in the state of Texas, to the plaintiff and appellant, for the consideration of $1,000. That the grantors in said deed had no title to the lands described, and that the plaintiff has never received any therefrom. That ill May, 1888, the said R. S. W. Ely died, leaving as heirs, surviving him, the defendants, Spencer and Hattie Ely. That at the time of his death he was seized of certain lands in Clark county, in this state, which descended to and are now owned and possessed by said defendants. Plaintiff asks judgment upon these facts, against said defendants for the amount of his damages on account of such broken covenant of the said R. S. W. Ely, ‘ ‘or so much thereof as the said defendants, as heirs of said R. S. W. Ely, may be answerable for under the laws of this state.” The answer of defendants denied the breach, denied that the consideration was $1,000, but alleged that it was certain mining stock, which proved to be worthless, and that plaintiff had suffered no damage; and, besides other affirmative matter in defense, it alleged that the said R. S. W. Ely died in Whiteside county, in the state of Illinois, in September, 1887; that he left a will, which was duly probated in said county, and under which the executors therein named, who were also residents of said county, duly qualified and settled the estate of tbe said Ely, deceased; that the said Ely, at his death, as aforesaid, left a large amount of personal property, which passed into the 474 hands of his said executors; and that, after the full payment and discharge of all debts and claims presented and proven against his estate, the said executors still had in their hands over §20,000 of personal property so left by deceased at his death, which by order of the probate court, and in the due administration and settlement of said estate, was by them duly distributed and paid over to the heirs and legatees in pursuance of the conditions of the will, and these executors were fully discharged April 24th, 1891. The -answer also set out the statutes of the state of Illinois, providing for the advertising by executors for claims against the estate, their presentation by claimants, and their adjustment by the executors or by the probate court; that the executors fully complied with the law on their part; but that neither this nor any claim of this plaintiff was ever presented to said executors or to said court, Or any payment on account thereof ever asked of either. On the 20th day of July 1894, each party moved for judgment against the other on the pleadings. The court gave judgment to defendants, dismissing plaintiff’s action, and from this judgment plaintiff appeals. Plaintiff frankly states that he brings this action under section 3254, Oomp. Laws, and upon the theory that it is designed to give a new cause of action against the heir, independently of the remedy given by other statutes against the covenanting grantor or his estate. The section reads as follows: ‘ ‘Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of any person who has made any covenant or agreement in reference to the title of, in, or to any real property, are answerable upon such covenant or agreement to the extent of the lands descended or devised to them, in the cases and in the manner prescribed by law.’’ We cannot but think that plaintiff has mistaken the purpose and effect of his statute. It first states that lineal and collateral warranties are abolished. It rather recites a fact than makes a change in the law. These warranties, lineal and collateral, were an 475 incident of the feudal system, and never obtained a substantial foothold in this country. They are inconsistent with and inapplicable to our system of land tenure, and were even abolished in England many years ago. 3 Washb. Real Prop. p. 513 et seq. This section 3254 probably means just the same as similar though not identical provisions in the statutes of other states. Por a great many years the statute of New York has been that “lineal and collateral warranties with all their incidents are abolished; but the heirs and devisees of every person who shall have made any covenant or agreement, shall be answerable upon such covenant or agreement, to the extent of the lands descended or devised to them in the cases and in the manner prescribed bylaw.” 1 Rov. St. p. 739, § 141. We understand it to be the purpose of these and similar provisions in other states not to create a new cause of action, but simply to declare. a remedy which may be pursued upon a claim, upon the covenant or agreement of the ancestor. If the heir has succeeded to real property which, as assets of the estate,, should be subject to claims against the ancestor on account of such broken covenant or agreement, then the heir so taking such real estate shall be liable to the extent of its value ‘ ‘in the cases and in the manner prescribed by law.” See Hill v. Ressegieu, 17 Barb. 168, as to the effect of this provision. Assuming the facts stated in the complaint to be true, plaintiff had a claim against Ely from the delivery of the deed to the time of his death, and a surviving claim against his estate, but he never presented it or took any steps towards its establishment. The estate was amply able to pay all claims. If this had been presented and proved, the conceded facts show it would have been paid. The executors were charged with the payment of claims against the deceased, and they had ample means therefor, but this claim was never presented. No opportunity was ever given the estate or its representatives to allow or pay it. Plaintiff was never a resident of this state, and there was no administration of the deceased’s estate here. 476 There appears to be no reason why he should not have presented his claim to the principal administration. It will be observed that this section, so relied upon, does not declare a general liability of the heir or devisee, but only that he shall be liable “in the cases and in the manner prescribed by law.” We do not think the plaintiff shows a case within the letter or the spirit of the law. The judgment of the circuit court is affirmed.