Day v. Burnham

CHIEF JUSTICE LEWIS delivered the opinion op the court. Tlie title bond of appellees, husband and wife, contains the following: “The said E. W. Burnham and Eliza Burnham bind themselves to have as good a deed as can be had to all the boundary claimed by them, for which the said R. M. Day binds himself to pay them three hundred dollars.” The bond of a vendor, in general terms, to convey land upon payment by the vendee of the agreed purchase price is, in legal contemplation, a covenant that he has, or will procure and make, a good title to the entire quantity sold, and in his deed warrant the title against all claims, and snch undertaking is limited only [77] wlien in plain terms so expressed. We think the language quoted imports an obligation by appellees to make a good title and warrant it generally, and cannot be fairly interpreted otherwise. Besides, appellees did not have title to the land when they sold it, the only interest in it of either of them being the dower right of Eliza Burnham, who was widow of John L. Day, and, therefore, a covenant to warrant the title only against those claiming under them would have been no warranty at all. Therefore, the deed tendered by appellees, though it was signed and acknowledged by the heirs at law of John L. Day, as well as by appellees, containing as it did only a special warranty of title, was not such as they covenanted to make, and they were not entitled to judgment for the unpaid purchase money. It was also stated in the answer of appellant, R. M. Day, that neither appellees nor any of the other parties to the deed tendered have a good title to the land, and that appellant, Shumate, was then in possession, claiming part of it. No effort was made by appellees to show title in themselves or in the heirs of John L. Day, nor did they make Shumate a defendant, or seek to recover of him the possession, or litigate with him as to his claim. It is true appellant, R. M. Day, made his answer a cross-petition against Shumate, but no issue was made therein with him, or judgment prayed against him. It seems to us it was incumbent on appellees, plaintiffs below, in the first place, to show they, or the heirs of John L. Day, had a good title to the land and right <of possession, after the fact was denied in the answer, [78] and, in the second place, to offer to make snch deed as they covenanted to make. But without requiring them to do either, the lower court rendered judgment for the' amonnt of the note sned on, being the last installment of the purchase price, and for a sale of the land to satisfy it. And after it had been sold and purchased by appellees, a further judgment was rendered against Shumate, as well as R. M. Day, for the possession, both of whom have appealed. As Shumate was not made by the plaintiffs a party defendant, nor his title or right of possession put in issue, we do not see upon what ground a judgment against him was rendered in their favor. Wherefore, the judgment for the amount of the note sued on, for sale of the land, and for the possession in favor of the plaintiffs, is reversed, and canse remanded for further proceedings consistent with this opinion.