Brown v. Metz

Mr. Justice Beckwith delivered the opinion of the Court: On the 26th day of March, 1857, James Brown, James R. W. Hinchman and John S. Loomis conveyed two lots of land to Anton J. Lubbe by deed containing a general covenant of warranty. On the same day Lubbe conveyed the premises, in fee, to Newton Flagg in trust to secure the payment of Lubbe’s two promissory notes for $1,076, payable to Brown, Hinchman and Loomis, with a power of sale in default of payment. Under this power of sale,. Flagg, on the 23d of March, 1859, sold and conveyed the premises to James Brown; who, on the 28th of the same month, conveyed the same by quitclaim deed to Anton J. Lubbe; who on the 30th of April, 1862, conveyed the same by quit claim deed to the appellee. On the 13th of October, 1856, Hinchman and Loomis executed a mortgage of the premises to Calvin H. Chadsey; and the appellee alleges that he has been evicted by the foreclosure of this mortgage. The suit is brought by the appellee against Brown, Hinchman and Loomis for the recovery of damages, sustained by an alleged breach of their covenant of warranty occasioned by the eviction. Hinchman and Loomis were not served with process. The covenant of warranty passed with the seizin of the land, from Lubbe to Flagg, and from him to James Brown. The James Brown to whom Flagg conveyed will be presumed to be the person who by that name executed the conveyance to Lubbe. 2 Phil. Ev. 508; Sewell v. Evans, 4 Q. B. 626; Roden v. Hyde, id. 629; Simpson v. Dinsmore, 9 M. & W. 47. The appellant having, before any breach of his covenant, become reinvested with the seizin which he conveyed and which he covenanted to warrant and defend, his obligation in this regard was extinguished. The estate granted by him ceased upon the reconveyance, and the covenant attendant upon the estate, and only coextensive with that, was extinguished when the estate ceased. The law does not allow persons to become assignees of their own obligations, and when an obligation is transferred to an obligor by an instrument in the form of an assignment, instead of taking effect as such it operates as an extinction of the obligor’s liability. The liability of a covenantor upon the covenant of warranty now in use is, in many respects, the same that it was under the old charter of warranty, out of which the nature and incidents of the present covenant are derived. The acts which extinguished the liability of the warrantor under the old charter of warranty, should have the same effect in regard to the present covenant of that description. The rule in regard to the extinction of the liability of a covenantor to warrant and defend the title to realty does not differ from that which obtains respecting other obligations. Notes, bonds, and all obligations, when assigned to the obligor, are extinguished by operation of law. Coke, in his commentaries upon Littleton, says (vide sec. 743): “When the warrantor takes back an estate as large as that which he had made, the warranty is defeated; because he cannot warrant land to himself, nor be an assignee of himself.” Littleton and his illustrious commentator give numerous instances of the extinction of covenants by a reconveyance of the estate to the warrantor. 1 Shep. Touch. 201; Platt on Cov. 585. The person seized of the estate conveyed, always had the power to release the covenantor, or warrantor, from his liability before the covenant or warranty was broken. As the covenant, or warranty, ran with the land until a breach, the reconveyance of the land before that time to the covenantor, or warrantor, transferred to him the Covenant or warranty,' without liability upon it to any one. There was no reason for keeping the obligation in force after that time. The covenant was designed to secure an indemnity to the grantee, and to those claiming under him, in case he, of they, were deprived of the estate; and when the estate was reconveyed to the grantor before any loss was sustained, the purpose for which the covenant was used, was consummated. Inasmuch as a formal release could not be executed by the covenantor to himself, the law made a reconveyance (under such circumstances) operate as a release. A subsequent conveyance of the premises did not revive the obligation. Such a conveyance was made either with or without warranty or covenants, at the will of the grantor; and there was no liability resting on him, unless there was a new warranty or covenants, whereby he entered into a new obligation. Inasmuch as Hinchman and Loomis are not in court, it is unnecessary to define their rights or liabilities. We are of the opinion that Brown’s liability was extinguished; and the judgment against Mm is reversed and the cause remanded. Judgment reversed, j,