Brady v. Spurck

Breese, J. This was an action of covenant. The declaration contains one count only, and upon the following covenants, contained in a deed from the defendant to William H. Haskell, the plaintiff claiming as the last covenantor through deeds of conveyance of the premises, from Haskell: “ And the said William Brady covenants to and with the said William H. Haskell, his heirs and assigns, that he, the said William Brady, was then the true and lawful owner of the premises hereby granted, and had good right, full power and lawful authority to sell and convey thé same in fee simple, and that he, the said William Brady, will covenant and forever defend the aforesaid premises, etc., to the said William H. Haskell, his heirs and assigns, against all lawful claims.” The breach is as follows: “ And the plaintiff avers, that at the time of the execution of the deed to Haskell, said Brady was not lawfully seized in fee simple of the premises, nor had he then and there good right and lawful authority to sell and convey the same in manner aforesaid, nor could the said Haskell or the plaintiff, by force of said deed, lawfully possess or quietly enjoy the same free from all incumbrances, nor has he, the said Brady, warranted and defended the same premises to them, against all lawful claims whatsoever, but on the contrary thereof, the plaintiff says that at the time of the sealing and delivery of the deed, the paramount title and freehold in the premises was in other persons than the said Brady, by virtue of which paramount title, the said plaintiff was evicted out of, and kept out of the premises, and afterwards, to wit, on the fifth day of July, 1860, was evicted out of, and kept out of and from the said premises, and so the said Brady has not kept his said covenants, but has broken the same.” The declaration then avers the existence of a mortgage on the property, executed by Brady before the execution of the deed to Haskell, proceedings in court to foreclose and sell, decree of foreclosure and sale, and a sale under the decree, and a purchase by one Eastman, of the premises, on the 7th July, 1860. The defendant demurred generally to the declaration, and assigned special causes: first, that the declaration is double, containing two causes of action in one count; second, that the declaration does not show that the grantor of the plaintiff warranted the premises to him, “ nor whether the said grantors have kept the covenants of the defendant.” Disposing of the last cause first, it will be observed that the suit is brought, not by an intermediate covenantee, but by the last assignee, and a judgment and recovery in his favor, could be pleaded in bar to any action any intermediate covenantee might bring against the first grantor or covenantor. So that it is not necessary that it should be alleged and shown, that they have kept their covenants with the defendant. They are not in the case. The plaintiff being the last assignee is the only person injured. Upon the question of duplicity. The declaration sets out the defendant’s covenants with Haskell, which were, that he was 'then the lawful owner of the premises, and had power to sell and convey in fee simple, and a general warranty. The breach is, that he was not lawfully seized in fee simple, nor had he good right and lawful authority to sell and convey the same, nor could said Haskell or the plaintiff lawfully possess or quietly enjoy the same free from all incumbrances, nor has the defendant warranted and defended the premises to them, against all lawful claims, but on the contrary he has been evicted by a paramount title. The deed containing the covenants, is not before us, it not having been made a part of the record by oyer. The declaration before us avers the making a covenant of seizin, of power to sell and of warranty only. The breach, includes not only these, but two others, on which the plaintiff has not counted, namely: a covenant against incumbrances and for quiet enjoyment. So far as the covenants of seizin and power to sell are concerned, they are covenants in presentí, and if the grantor had no title at the time he entered into them, they were broken as soon as made. They then became a mere chose in action, not assignable so as to enable the assignee to sue, at law, in his own name. Furniss v. Williams, 11 Ill. 229; Rawle on Covenants for Title, 285. But the covenant of warranty is prospective, and is understood to be broken only upon an eviction or by something equivalent thereto, and runs forever, with the land, into the hands of all those to whom it may subsequently come, by descent or purchase. The plaintiff could sue upon this, and the breach assigned upon it is well assigned. But could he join a breach of other covenants not in tiie deed, and which did not pass to him, with this covenant, as he has done ? The rules of correct pleading allow several causes of action of the same nature to be joined in one count, and a recovery had pro tanto. The defendant can plead specially to each cause of action. Godfrey et al. v. Buckmaster, 1 Scam. 456: Different actions cannot be joined in the same declaration. The rule is, that when the same plea may be pleaded and the same judgment rendered on all the counts, they may be joined. These distinct breaches are to be regarded as so many distinct counts, to which the defendant could plead specially,' or they might be met by a general plea of covenants performed. The demurrer is general to all the breaches, and one of them being good—that on the covenant of warranty— the plaintiff must have judgment. This rule is so well settled as not to require a reference to authorities. Upon the other point, that the declaration does not show that the conveyance of the lots to the plaintiff was by deed of warranty, we hold, that it matters not by what kind of deed the premises were conveyed. Any deed which would convey the land, would convey the covenants running with the land. A quit-claim deed is as effectual to convey land, as a deed with full covenants. McConnel v. Reed, 4 Scam. 121. Unless there be words in the deed limiting the conveyance. Butterfield v. Smith, 11 Ill. 486. The other question made, is as to the assessment of damages. The defendant abided by his demurrer, asking no leave to plead over, and we must take the facts to be true as alleged, that the plaintiff was evicted by a paramount title. But the manner and quality of that eviction is alleged, and the demurrer reaches that also. It is a substantial part of the declaration, from which it appears, there has been no actual eviction, or attornment to the purchaser under the decree, or that the plaintiff has been turned out of possession, or even threatened to be turned out, or that there is an adverse title. Nor is there any averment that a deed has been made to such purchaser, or that he has any muniment of title by which he could oust the plaintiff. Nor is there any averment that the time of redemption had expired. Had the mortgage not been foreclosed, on the principle that the mortgagee is the owner of the. fee, he could have maintained ejectment and recovered the premises, but having resorted to a court of equity to foreclose and sell, can the purchaser under the decree without a deed, and before the time of redemption has expired, assert or set up a hostile title, to which the the plaintiff could, rightfully, and without suit, succumb ? The covenant is not against incumbrances, 'but on an eviction, and from the plaintiff’s own showing, we do not think there was an eviction, or anything equivalent to it. We cannot say, under the plaintiff’s showing, that his title has been defeated, by a paramount legal right, and must hold, that the mortgage and proceedings under it was a mere incumbrance which the plaintiff might have removed, and then looked to the defendant for indemnity. If he had removed it, then the measure of damages would have been, not the purchase money and interest, which the court allowed, but the amount necessarily paid to remove the incumbrance, not, however, to exceed in any event, the purchase money and interest. The question then is, was not the court wrong, in measuring the damages ? Clearly it was wrong. The facts do not make a case in which anything more than nominal damages should have been awarded, as there is an absence of proof that the plaintiff had paid off the incumbrance. The judgment is reversed, and the cause remanded. Judgment reversed.