Taylor v. Forbes' Administrator

Buchanan, J., delivered the opinion of the court. O. P. Harrison purchased from the West End Land Company of Boanoke city two lots, paid part of the purchase price in cash, and executed two negotiable notes for the residue, each for $375, dated September 23, 1890, and payable respectively in one and two years from date. On the 25th of October following, Harrison sold and conveyed the lots to Mrs. Martha H. — 662 — Taylor, the appellant, and Mrs. L. May Eorhes, jointly, who paid the purchase price in cash, except the amount of the two notes executed by Harrison to the land company, which they assumed to pay. Mrs. Taylor paid her half of each note. To collect the other half of the notes the West End Land Company filed its bill, naming as defendants Mrs. Taylor and Mrs. Eorbes. The latter having died after the notes matured and before the suit was brought, an amended bill was filed, making defendants thereto, in addition to Mrs. Taylor, the personal representative, heirs, and devisees of Mrs. Eorbes, and the trustee in the deed of trust executed by Harrison upon the lots to secure the payment of the notes which he had executed to the land company, and whose payment had been assumed by Mrs. Taylor and Mrs. Eorbes. The personal representative of Mrs. Eorbes filed a plea, in which she alleged that the right of action had accrued more than three years prior to the institution of the suit; and, upon a hearing of the cause upon the supplemental bill, the papers formerly read, and the plea of the statute of limitations, and replication thereto, the plea was sustained, and the suit dismissed as to the personal representatives, heirs, and devisees of Mrs. Eorbes. From that decree, and a decree refusing to permit Mrs. Taylor to file a bill and an amended bill of review, this appeal was„ granted. The first error assigned is that the court erred in holding that that portion of the purchase price of the lots for which Mrs. Eorbes was personally liable, and unpaid, was barred by the statute of limitations. There is no question that more than three years had elapsed from the maturity of the purchase-money notes, before the amended bill was filed, if the time between the death of Mrs. Forbes and the filing of the amended bill is counted. This period, it was claimed in the petition for appeal, should be excluded, in ascertaining the time during which the statute had been running. That claim was abandoned in argument. — 663 — The contention of the appellant is that the statute of limitations applicable to the case is ten years and not three, as the trial court held. The determination of that question depends upon the character of the contract by which Mrs. Taylor and Mrs. Forbes assumed the payment of the notes in suit. The deed by which Harrison conveyed the lots to Mrs. Taylor and Mrs. Forbes states that the parties of the second part assume, and covenant to pay off and discharge, the said notes. Neither Mrs. Taylor nor Mrs. Forbes signed the deed, but they accepted it and took possession of the lots under it. The authorities are agreed that, by accepting a deed like the one under consideration, the grantee becomes liable to perform any promise or undertaking therein imposed upon him, but they are in conflict as to the character of the undertaking. It is held in some of the States that an agreement of the grantee in a deed signed and sealed by the grantor only is in the nature of a covenant under seal, and consequently a specialty. In others it is held that such an agreement is in the nature of an assumpsit or implied contract arising from the acceptance of the deed, and consequently a simple contract. Counsel have hot cited, nor have we found in our investigation, any decision of this court in which that question was considered and passed upon. That such an agreement is not a specialty or contract under seal, and that an action of covenant will not lie upon it at common law, is the accepted doctrine in this State, as we understand it. Mr. Conway Robinson, a text-writer of the highest authority upon common-law pleading and practice in this State, was of this opinion. In his New Practice, Vol. 3, p. 362-’3, he says: “Of the action of covenant, it was-said by Abbott, C. J., that it cannot be maintained, except against a person who, by himself, or some other persons acting in his behalf, has executed a deed under seal, or who (under some very peculiar circum — 664 — stances, such as is maintained in Co. Lit. 231a.) has by deed agreed to do a certain thing.’ Burnett v. Lynch, 5 Barn. & Cress. 589, 12 Eng. Com. Law, 331. It would, however, be a mistake to suppose that an action of covenant can be maintained against the grantee in a deed poll under any circumstances, or against any one else who had not sealed it. Lock v. Wright, Str. 571; Maule v. Weaver, 7 Bair, 331. Eor in the case obscurely stated in Co. Lit. 231a, the form of action proves to be debt, and not covenant. This has been ascertained by Mr. Platt, on reference to the Year Book, 38 Ed. III., 8 a, from which the case is extracted. The case in the Year Book 3 II. VI., c. 26h, referred to in Co. Lit., Mr. Platt states, also was an action of debt, and related to the defeasance of an obligation. Platt on Cov. 12, 13. Covenant, then, will lie only where the instrument is actually signed and sealed by the party, or by his authority.” This view is sustained by the decisions of courts of the highest authority. In Pike v. Brown, 7 Cush. 133, Chief-Justice Shaw said: “The principle is well settled that where one by deed poll grants land and conveys any right, title, or interest in real estate to another, and where there is any money to be paid by the grantee to the grantor, or any other debt or duty to be performed by the grantee to the grantor, or for his use or benefit, and the grantee accepts the deed and enters on the estate, the grantee becomes bound to make such payment or perform such duty, and, not having sealed the instrument, is not bound by it as a deed; but, it being a duty, the law implies a promise to perform it, upon which promise, in case of failure, assumpsit will lie.” The Supreme Court of Pennsylvania, in Maule v. Weaver, 7 Pa. 329, in an opinion delivered by Chief-Justice Gibson, held that covenant would not lie against a grantee in a deed poll under any circumstances, or against any one else who had not sealed it. — 665 — In Willard v. Wood, 164 U. S. 502, 17 Sup. Ct. 176, 41 L. Ed. 531, the Supreme Court of the United States (Chief-Justice Fuller speaking for the court) held that the grantee’s liability by reason of his acceptance of a deed, without executing it, containing a covenant on his part to assume a mortgage on the premises conveyed, was a simple contract, not a specialty, and subject to the statute of limitations applicable to simple contracts. To the same effect is the decision of the Supreme Court of West Virginia in W. Va., &c. R. Co. v. McIntire, 44 W. Va. 210, 216, 217, 28 S. E. 696. The syllabus in the case on that point states exactly the opposite of what the court decided. We are of opinion that the agreement of Mrs. Taylor and Mrs. Forbes was a simple contract, not a specialty, and that the court did not err in sustaining the plea of the statute of limitations, but it did err in dismissing the cause as to the personal representative, heirs, and devisees of Mrs. Forbes. One of the objects of the amended bill was to subject the lots purchased by Mrs. Forbes and Mrs. Taylor to the payment of the notes sued on. They or their representatives were necessary parties to the suit. The court by its decree of the May term, 1902, passed upon no question in the case, except the plea of the statute of limitations set up by the personal representative of Mrs. Forbes. The determination of that question did not adjudicate or affect any question between Mrs. Taylor and Mrs. Forbes’ estate growing out of the purchase of the lots for which the notes sued on were given. That decree was not a final decree as to the appellant. She still had the right, under section 32Y5 of the Code of 188Y, to file an answer, and, but for the dismissal of the suit as to Mrs. Forbes’ representatives, could have made all the defences and asserted all the rights she could have made and asserted if that decree had not been made. When that decree is corrected in — 666 — that respect, as we have seen it must be, she is in no way prejudiced by it. Having reached that conclusion, it is unnecessary to consider the assignments of error as to the refusal of the court to permit the appellant to file her bill and amended bill of review to set aside that decree. The decree of the May term, 1902, must be reversed in so far as it dismissed the bill against the personal representative, heirs, and devisees of Mrs. Forbes, and affirmed in other respects, and the cause remanded to the Corporation Court to be further proceeded with in accordance with law, and not in conflict with the views expressed in this opinion. Reversed in part.