Foster v. Young

Day, J. 1 Conveyance : li?anaudgeffeot of covenants. The principal question, and the one which in our view is decisive of the case, relates to the effect ^ t.nist deed to Hozen, and of the proceedings had thereunder. I. ALs to the effect of scdd deed upon the rights of Ellen Foster. The deed is executed by her as the guardian of the minor heirs of Thomas Foster, deceased, and contains — 33 — the following covenants : “ The said Ellen Foster, guardian as aforesaid, hereby covenanting for herself, her heirs, executors, and administrators that she is seized of a good and indefeasible title in fee simple; that the premises are free and clear from every incumbrance; that she has full right to sell and convey the same in the manner aforesaid; and that she will warrant and , defend the title unto the said party of the second part, and his heirs, against the lawful claims of all persons whomsoever.” And after providing for the sale of the premises in default of the payment of the sum secured, the trust deed provides as follows, to wit: “ And he, the said George M. Van Hozen, will be empowered to execute a deed in fee simple for the premises aforesaid, or so much as he may sell, with all the covenants touching title herein contained, to the purchaser, which deed will be absolute, and prevent said party of the first part, or her heirs or assigns, from setting up any claim thereto, ■either in law or in equity.” The plaintiff,-.■Ellen Foster, now claims that, notwithstanding this cónveyance, with all these covenants and these stipulations, she is in law entitled to the possession and enjoyment of the property conveyed, for the period of her natural life. The leading case in this country discussing the effect of covenants in a conveyance of one contracting in auter droit, is that of Sumner, admr., v. Williams et al., 8 Mass. 162. In that case Thomas "Williams and Joseph Williams, as administrators of the estate of William Dudley, deceased, under a license granted by the proper court, conveyed to Increase Sumner and Elizabeth, his wife, certain real estate of which William Dudley died seized. The covenants, which she drawn with great caution, and, it would seem, with the purpose of guarding against any recurrence to the grantors, or them estates, in case of a failure of title, are as follows: “ And we, in our said capacity of administrators, 'do covenant with the said Increase and Elizabeth, — 34 — their heirs and assigns, that we, as administrators as aforesaid, are lawfully seized of the premises; that they are free and clear from all incumbrances by us or with bur knowledge made; * * * that we have in our capacity good right to sell and convey the same to the said Increase and Elizabeth; and that, as administrators as aforesaid, we will warrant and defend the same to the said increase and Elizabeth, their heirs and assigns forever, against the lawful claims and demands of all persons.” It was afterward discovered that "William Dudley was only tenant in tail, at the time of his death. The heir evicted the grantees of the administrators, and they brought suit upon the covenant of warranty. Each of the three judges of the supreme court of Massachusetts filed an opinion, characterized by great research and ability. Parker and Sewadl, JJ., held that as the covenants could not bind the estate of the decedent, they bound the administrators personally, although it was conceded that the grantees did not rest upon a supposed personal liability of the grantors for their security; and that both parties believed that whatever virtue there was in the covenants, the estate of William Dudley, and not those of the administrators, was to be affected by them. Sedgwick, J., dissented, principally upon the ground that the deed purported to convey only an equity of redemption, and that the covenants must be limited to that equity and did not extend to the larnd. Following this is the case of Whiting v. Dewey, 15 Mass. 428. In this case Hugo Dewey and Hugo Berghardt, as testamentary guardians of Abigail Dewey, an infant daughter of Benedict Dewey, deceased, conveyed to the plaintiff certain land, covenanting in their capacity of guardians “ that Benedict Dewey, deceased, died seized of the premises, and that they, the said guardians, in right of the said minor, were lawfully seized of the premises.” The title to a portion of the lands having failed, suit was instituted against Hugo Dewey,'the surviving guardian, — 35 — upon his covenants. Wilde, J., delivering the opinion of the court, said: “ The original defendant, as the surviving covenantor, is charged in his private capacity with the breach of these covenants; and the first question is, whether by law he can be charged personally upon these covenants. This question was very fully considered in the case of Sumner v. Williams, 8 Mass. 162, which, in principle, cannot be distinguished from, the case at bar; and although the court was divided in opinion in that case, the soundness of the decision by a majority of the court has never since been questioned; and it is supported by a current of authorities, and by well-established principles. When parties contract en awbre droit, and fail to bind their principals, they are to be held personally responsible. This is the general rule, and is perfectly reasonable and just. The exception is, where the contracting party is a public agent, and contracts on the public account. This exception is founded on public policy, and, therefore, emphatically proves the rule; for if the rule had not been well established, the exception would have been placed on other grounds than that of public policy.” The case of Heard v. Hall, 16 Mass. 458, is on all fours with the present. Hugh Hall, who was seized of the premises in dispute, devised them to his son Benjamin for his natural life, with remainder to his children and their heirs. Benjamin had six children, who became tenants in common of the premises. In 1799, the elder of these children, upon an inquisition of lunacy, was found to be a person non compos mentis, and the plaintiff, Joseph Heard, was appointed his guardian. In 1813, Pitts Hall, one of the children of Benjamjn, conveyed to plaintiff his interest in the premises, and shortly afterward died. In 1814, the plaintiff, in his capacity of guardian, obtained a license from the proper court to sell so much of the real estate of .his ward as should be necessary for the payment of the debts incurred for the support of the ward and his — 36 — family. By virtue of this license he sold a portion of the premises, at public sale, to Isaac F. Coffin. And, on June 26, 1815, he executed a deed purporting to convey this portion to him, with a covenant that he was lawfully authorized and empowered to make sale of the granted premises. On the same day, Coffin, for the alleged consideration of $3,500, reconveyed the premises to the plaintiff. In 1831, an agreement was entered into between the plaintiff and the defendant, Charles Hall, and his sister Sally, the only surviving children of Benjamin Hall, whereby the plaintiff quit-claimed to them all the right and title which he acquired by virtue of the deed from Coffin, in consideration of the sum of $1,000, by them paid. On June 12, 1831, Sally Hall, for a valuable consideration, conveyed all her interest and estate in the premises to plaintiff. The plaintiff brought an action against Charles Hall, for a partition of the premises, claiming twenty-one undivided thirty-sixth parts thereof. The defendant alleged that he was seized of the undivided one-half. The question presented was as to the effect of the deed of Joseph Heard as guardian to Isaac Coffin. At the time he conveyed to Coffin a distinct portion of the land, as the property of his ward, he himself was the owner of an undivided one-sixth part thereof, by virtue of the conveyance of Pitts Hall. From the opinion of Wilde, J., announcing the decision of the. court, we quote the following : “ The principal question arising in the case is, whether the petitioner can now set up his title derived from Pitts Hall, or whether he is not estopped by his deed to Coffin, as to that part of the premises which was conveyed to him as the property of Benjamin Hall. That he would not be allowed to set up such a claim in a court of equity is undeniable, this being a strong case within the well-estab.lished rule of equity, that where one having title acquiesces in the disposition of his property, for a valuable considera — 37 — tion, by a person pretending to title, and having color of title, he shall be bound by such disposition, and shall not afterward be allowed to set - up his own title against the purchaser. And so it has been held, that if one having title stands by while another.purchases from a third person claiming title, and does not forbid the purchase, or disclose his own title, he shall be bound. A fortiori, if he encourages the purchase; or, as in the present case, a person sells his own property, as the property of another, to a tona fide purchaser for a valuable consideration. * * * Ip, the present ease, the petitioner’s deed purports to be an unqualified grant of the land to the grantee in fee simple. It purports to pass the whole estate, and it is utterly inconsistent with the plain import of the grant, to allow the petitioner now to show that only a part of the estate passed by that conveyance. * * * The petitioner expressly covenants that he is lawfully authorized and empowered to make sale of the granted premises, that is, of the whole estate. Most certainly he was not so authorized; and this covenant operates to avoid circuity of action, by way of rebutter, and estops the petitioner from setting up his title from Pitts Hall. The respondent, holding under the deed to Coffin, has a right to avail himself of this estoppel.” See, also, Poor v. Robinson, 10 Mass. 131; Wood v. Livingston, 11 Johns. 35; Dougry v. Topping & Holme, 4 Paige, 94; Cochran, v. Harrow, 22 Ill. 345 ; Rawle on Covenants, 570-573, and cases cited. These eases settle, so far as any question can he determined hy authority, that the covenants in the deed of Ellen Poster bind her personally, and estop her from asserting any title to the property inconsistent with the terms of her grant. The covenants in her deed'make a much stronger case against her than do the covenants in the principal case of Sumner v. Williams make against the administrators. 'While the covenants in that ease seem to be drawn with the express purpose of exonerating — 38 — the grantors from liability thereon, those in this case seem to be expressly intended to create such liability. If the administratoi’s were bound by those covenants, a fortiori, should she be bound by these ? She covenants for Tier-self, her heirs, executors and administrators, that she is seized of a good and indefeasible title in fee simple, and that she will wan'ramt and defend the title unto the party of the second part, and his heirs, against the la/wful claims of ail persons whomsoever. Upon what principle can she now be allowed to say that she had no present seizin in behalf of her wards, that she was seized in her own right, that she had no authority to convey an estate to vest in prmsenti, and, in opposition to her deed, to assert in hex’self a claim to this property during her natui'al life ? The eonsidei*ations which wex’e so strongly urged against the personal liability of the covenantors in Sumner v. Williams, have .no application here. In that case it was urged that the proceeds of the sale went to the benefit of the estate, and that it was clearly apparent that they did not intend to be personally bound upon their covenants. In this case it is shown that a portion of the money borrowed was expended in making improvements upon the very property now claimed by plaintiff; and the fact that, from the date of the sale, on the 11th of April, 1861, until the 14th day of June, 1869, the date of the commencement of this action, Young and his grantee wei’e allowed to remain in the undistux’bed possession of the most valuable part of said premises, receiving the rents thereof, raises a strong presumption that the plaintiff intended to be bound by her covenants, believed that she was thereby barred of any right in the property. We have found no authority inconsistent with those cited. The cases referred to by appellant are those in which an estoppel in pais was sought to be evaded, and hence are not applicable to the question under consideration. — 39 — We conclude without any hesitancy that the plaintiffs’ claim cannot be sustained. g_right of redemption. II. As to the right of Ellen Foster to redeem from, the sale under foreclosure. It is claimed that this right exists because she was not made a party in her own right to the foreclosure proceedings. But she did not -in such right execute the trust deed. She did not purport to convey any interest of her own in the property, but by her covenants she impliedly stipulated that she had no interest therein. If she had stood by and seen another execute a mortgage on her property as his own, she could not claim a right to redeem because she was not made a party to the foreclosure proceedings, because by her acts she is estopped from making any claim to, or asserting any interest in, the property. And, certainly, she is placed in no better position by the fact that she has mortgaged her own property as that of another. The effect of her covenants is the same as though she had disclaimed any personal interest in the property. She cannot now claim title to, or interest in, the property, even for the purpose of redeeming, without denying her covenants, and without such title or interest the right of redemption does not exist. The right of redemption cannot be admitted without ignoring all we have said as to the effect of the covenants in plaintiff’s deed. See Huston v. Seeley, 27 Iowa, 183. a. guabdxaits’ siu^ry'interest of heirs. III. As to the effect of the trust deed rvpon the rights of the other plamtiffs. 1. It is urged that, at the time of this conveyance, the seizin to this property was in t3tie widow> Ellen Eoster> and not in her wards, and thSt, consequently, the trust deed of their interest is void; and that section 2211 of the Revision applies only to sales, and does not authorize a mortgage. The estate of the heirs of Thomas Foster is a reversion. If an owner in fee die, leaving a widow, who is endowed — 40 — from his land, his heirs are owners of the reversion. 1 Hill, on Heal Property (4th ed.) 763. A reversion, like a vested remainder, though not to take possession in prcesenbi, is still an immediate fixed right of future enjoyment, and subject to most of the rights and liabilities incident to estates in possession. Id. 765. In case of an estate in dower, or by the curtesy, after the death of the last owner in fee, the heir takes only a reversion. But it is a misnomer to call it a case of suspended descent, for the reversion descends and vests absolutely in the heir; he may sell it, incumber it, devise it, and it is subject to execution as part of his property during his life. Id. 972, note a; see, also, 4 Kent (8th ed.), ch. 63, p. 373. We conclude, therefore, that the interest of these heirs is the proper subject of a conveyance. The rule contended for by appellant applies where one conveys land which is in the adverse possession of another. The reason of the rule is that at common' law the assignment of a chose in action is not authorized, and the transaction partakes of the nature of maintenance. Jackson v. Dumont, 9 Johns. 55; Martin v. Pace, 6 Blackf. 99. The widow’s dower is not held adversely to the heir. Her life estate and the heir’s reversion together constitute the fee. Besides, things in action may be assigned under our law, and the reason of the rule ceasing, it may well be doubted whether the rule itself, even independently of section 2211 of the Bevision, should longer apply. L_deed of frast. 2. It is next objected that, while a guardian may mortgage the property of his wards, he cannot execute a deed of trust thereon. We regard the objection as without foundation. Section 2552 of the Hevision confers upon the guardian authority, under the direction of the court, to,mortgage the real property of the ward. We are satisfied that the term is here used in its general sense, of granting an estate as a pledge for the — 41 — payment of money, without reference to the form which the grant assumes. As the interest of all the plaintiffs is divested by the deed of trust, and, the foreclosure and sale thereunder, it becomes unnecessary that we should examine the effect of the sales under the other proceedings. Affirmed.