Wead v. Larkin

Mr. Chief Justice Lawrence delivered the opinion of the Court: This case has been'twice before this court, and will be found reported in 41 Ill. 415, and 49 Ill. 99. The facts are set forth in the opinion in 41 Ill. and it is unnecessary to repeat them hére. After a third verdict and judgment against the defendants in the circuit court, they again bring the record here and submit it upon a question which has not hitherto been raised. It is now for the first time claimed, that the action will not lie, because the defendants, at the time they executed the deed containing the covenant upon which they are now sued, were not in actual possession of the land, and had no estate in it of any kind. It is contended, in such cases, the covenants in a deed do not run with the land, because there is no estate to which they can attach, and, therefore, the grantee of the immediate covenantee can not sue. It is true, it has been held by the current of authorities, that the covenants of seizin, of a right to convey, and that the land is free from incumbrances, being in presentí, if broken at all, are broken as soon as made, and becoming at once mere choses in action, do not run with the land, or, in other words, do not pass to the grantee of the immediate covenantee. But, even on this point, there is some contradiction in the authorities, the King’s Bench having held, in Kingdon v. Nottle 1 Maule & S. 355, and 4 ib. 53, that the assignee might sue, on the ground that the want of seizin is a continuing breach. So, too, it was held-in Admr. of Backus v. McCoy, 3 Ohio, 211, that the covenant of seizin runs with the land, so long as the purchaser and the successive grantees under him remain in possession, and the rule is enforced by the court with very cogent reasoning. But if it be true that these covenants in presentí can not be made the basis of an action by the assignee, it is not denied that the covenant of warranty, which is the covenant in the case at bar, runs with the land and protects the grantee of the covenantee. This was settled in Spencer’s case, 5 Coke, and has probably never since been denied. It is claimed, hoAvever, in behalf of appellant in the present case, that, although this covenant runs Avith the land, yet, if the coA'enantor has neither actual possession nor legal title, there is no estate to which it can attach, and it does not pass to the grantee of the covenantee. In support of this position, counsel cite the case of Slater v. Rawson, 1 Metc. 456, and, it must be admitted, this doctrine is there announced. The court say: “ To support an action by an assignee, on the covenant of warranty, it is necessary the Avarrantor should have been seized of the land, for by a conveyance without such seizin, the grantee acquires no estate, and has no power to transfer to a subsequent purchaser the covenants in his deed; because, as no estate passes, there is no land to which the covenants can attach.” It is, however, admitted by the court, that if the covenantor is seized in fact, though without title, the covenant does attach and pass to the assignee, and when the same case came again before the court, at a subsequent term, as reported in 6 Metc. 442, the plaintiff AA’as allowed to recover, on the ground, that the covenantor had cut timber and hoop poles from the land, and thus had such a seizin as caused his covenants to attach to the land and pass to the grantee of the covenantee. Notwithstanding our great respect for that court, this seems to us a very striking instance of the sacrifice of substance to shadow—the true meaning and spirit of a rule, to the mere form of words in which it has been found convenient to express it. A1 reason at least technically sound, whether in fact satisfactory or not, can be given why covenants in presentí do not pass to the assignee. The reason assigned for this rule by the courts which maintain it, is, as already stated, that these covenants, if broken at all, are broken as soon as made, and the covenantee" thus acquires a mere chose in action, which, under the rules of the common law, can not pass to an assignee by a conveyance of the land. But not so with the covenant of warranty. That operates only in futuro, and is only broken by eviction. It is admitted that it attaches to the land and passes to the assignee, if the covenantor has a seizin in fact, though a wrongful seizin. Why, then, should it not pass to the assignee of the covenantee, if the land is vacant at the time the covenant is made, and the covenantee, as in the present case, enters under his deed and then conveys ? If the land were adversely held at the time of the first conveyance, and if the common law, rendering such a conveyance void, were still in force, it might be said, the covenants were void as to the covenantee. But it is admitted in the case at bar, as it was in the Massachusetts case, that the covenant was a valid covenant to the covenantee, even though the covenantor was not in possession of the land. But, it was said, it did not pass to the assignee, because it attached to the estate, and the assignee took no estate. Yet, if a wrongful seizin on the part of the assignor would cause it to attach to the estate, and pass to remote grantees, and if, in the absence of seizin by the covenantor, the covenant was valid to the covenantee, as is admitted, we should like to inquire why, "as soon as the covenantee took possession of the vacant land, the covenant did not then at once attach to the land, and pass with the conveyance of the covenantee ? If the question of possession is at all important in reference to the passing of this covenant to an assignee, it is not the possession of the covenantor that is material, but that of the covenantee when he makes his conveyance. Then is the first time that the covenant passes as attached to the estate. When first made, it is made to the covenantee directly and in person, and he takes its benefit by virtue of his contract, and not as an incident to the-estate. It can-.certainly never be' held, that if he takes possession and is evicfed by paramount title, he can not recover, because the land was vacant when the deed was made to him. Even then, if we concede that he must take possession before he can pass the covenant to his grantee, as attached to the land, we are wholly unable to see why it does not pass if he has taken possession, or what the possession or non-possession of the covenantor, when the covenant was made, has to do with its passing to the grantee of the covenantee. The cases of Moore v. Merrill, 17 N. H. 81; Beddoe’s Exrs. v. Wadsworth, 21 Wend. 120, and Fowler v. Poling, 6 Barb. 166, cited by counsel for appellant, so far from being inconsistent with the position we have here taken, seem rather to support it. The last case was first heard at special term before a single judge, and is reported in 2 Barb. 306. It was held, as in the Massachusetts case, that as the covenantor had no possession, the covenant did not pass to the assignee. An appeal was taken to the general term, and it was there held, the conveyance by the covenantee in possession passed the covenant to the assignee. The case of Nesbitt v. Nesbitt, 1 Taylor N. C. Rep. also cited by counsel for appellant, was one in which the grantors, by the face of their deed, did not purport to convey their own land, but that of their daughter, and covenanted that she should make good the title on her coming of age. The court held the covenants were collateral to the title, and did not pass to the assignee. The decision is based on the peculiar character of the deed and covenants. The question was, whether the covenants in the peculiar deed before the court could pass to an assignee, and did not turn upon the question of possession. Our conclusion is, that where the covenantee takes possession and conveys, the covenant of warranty in the deed to him will pass to his grantee, although the covenantor may not have been in possession at the time of his conveyance. This is the case at bar. It is not, however, to be supposed; because we do not now lay down a broader rule than is required by the case before us, that we hold, by implication, the covenants would not pass if the immediate covenantee should convey before taking possession. On the contrary, .it would much better comport with the interests of this State, where vacant lands are so largely an article of commerce, to hold that the covenantor, whether sued by an immediate or remote grantee, is estopped by his deed from denying that he had an estate in the lands to which his covenants would attach, and which would pass by deed. The covenant, it is true, passes to the assignee as appendant to the land, but this does not mean the actual title to the land, for, in such cases, no covenants would be needed. They are intended as a protection to the covenantee and his assignees, in case the covenantor has no title, and it is a very extraordinary mode of reasoning which leads to the conclusion, that, if the covenantor’s want of title is also accompanied by a want of possession, for that reason he should be excused from liability to the remote grantee. We should be inclined rather to say, that although the covenant of warranty is attached to the land, and for that reason is said, in the books, to pass to the assignee, yet this certainly does not mean that it is attached to the paramount title, nor does it mean that it is attached to an imperfect title, or to possession, and only passes with that, but it means, simply, that it passes by virtue of the privity of estate, created by the successive deeds, each grantor being estopped by his own deed from denying that he has conveyed an estate to which the covenant would attach. In the case at bar, the defendants conveyed to’ the Wordens, and in their deed covenanted with them, their heirs and ássigñs, that they would'forever warrant and defend the premises against pate’nt titles. The land was then.vacant. The Wordens took possession under their d.eed, and subsequently sold and conveyed to Larkin, and delivered to him the possession. An action of ejectment was brought against him, pending which he died, and. his heirs, the present plaintiffs, having been made parties,, j udgment passed against them, and they were evicted by a para- • mount patent title. The covenant of warranty in defendant’s deed was never broken until then. It was never a mere chose in action in the hands of the immediate covenantees. No one but these plaintiffs has ever had, or can have, a right of action on this covenant. If they can not have it, the covenant which was inserted in the deed of defendants, in order to give perpetual security to both immediate and remote grantees, has become a dead letter. And why? The only reason that can be given is, because the covenantors, instead of having a partial title or a tortious possession, had no title nor possession of any sort. Their security is to be found in the completeness with which their covenant has been broken. The reasoning does not commend itself to our judgment. Judgment affirmed.