Colver v. McInturff

The opinion of the court was delivered by MasoN, J.: This is an action brought by C. B. D. Colver, to whom a warranty deed in the usual form had been executed, against Eugene Mclnturff and his wife, who were the grantors in the first of a series of conveyances (two of which were quitclaims) which ended in the warranty deed to the plaintiff, for a breach of the covenants of the deed executed by the defendants. Judgment was rendered for the defendants and the plaintiff appeals. [605] 1. The question involved is whether the plaintiff was entitled to the benefits of the covenants relied upon. The doubt on that subject arises from the fact that the defendants at no time had any title to the land described in the deeds and neither the defendants, the plaintiff, nor any of the intervening grantors ever had possession of it. The defendants’ claim of title was under a sheriff’s deed based upon a mortgage-foreclosure judgment which was utterly void for want of service upon the'owner of the fee. At the time the deed by the defendants was made the land was in the open and exclusive possession of the owner, who has continued in its occupancy ever since. The plaintiff brought an action against him to recover it and was defeated on the ground of having no title. The greater number of state courts which have passed directly upon the matter hold that covenants of warranty and seizin in a deed by a grantor who has neither title nor possession to a grantee who does not obtain possession do not run with the land. A less number hold that the majority doctrine is merely a specific application of the more general rule that a covenant after its breach becomes a mere personal claim and does not run with the land, and that this rule is based solely upon the nonassignability of a chose in action at common law and therefore should not be followed in jurisdictions where such assignments are permitted. The decisions upon the point are collected in notes in 14 L. R. A., n. s., 514 and L. R. A. 1916 D, 613. Later cases bearing on the matter are: Eli v. Trent, 241 S. W. (Ky.) 324; Merchants Natl. Bank v. Otero, 24 N. M. 598; Beecher v. Tinnin, 26 N. M. 59; Gulf Coal & Coke Co. v. Musgrove, 195 Ala. 219. A detailed discussion of a question upon which so much has been written seems unnecessary. Our view is that the covenants of a deed which is made by a grantor who has neither title nor possession to a grantee who obtains no possession do not run with the land and do not upon that principle pass with succeeding conveyances; and this not merely because the covenants are broken as soon as the deed is made, resulting in the accrual of a personal cause of action, but also because inasmuch as the grantor gives no right to the land and the grantee takes none, no interest in it is passed and there is nothing to which the covenants can attach and the transfer of which they can follow. They cannot run with the realty because they have not become attached to it. In the situation stated, if the grantee should die intestate his heirs would take nothing. They [606] would take no realty, for their ancestor had none; and they would not take the right of action on the broken covenants, for that would pass to the administrator. Whether in the situation stated the right to recover damages for the breach of covenants would pass by the grantee’s execution of a deed, by virtue of its provisions other than those essential to the passing of such title to the realty as he had, is a different question and one the answer to which depends upon-the contents of the deed. Obviously, there might be inserted in a deed an express assignment of that right, which would be effective. There is good ground for the argument that one who, having received a deed with the usual covenants, but having neither title nor possession, executes to another a like document, intends thereby to transfer by assignment all rights acquired under the deed to him, including that 'of recovering damages for the breach of covenants. But he who executes a mere quitclaim, which involves no assertion of title on his part and does not purport to pass any, and in which he undertakes no responsibility, cannot in our judgment be regarded as intending to transfer anything more than such interest in the property as he may have, and such covenants as in strictness run with the land — he gives only such rights as his heir would receive should he die intestate, which in this case would be nothing. We do not find this distinction between a deed of general warranty and a quitclaim to have been the basis of a decision upon the question whether a right of action was assigned, but in discussions of the subject suggestions are made as to the matter depending on the language of the deed, and in most of the cases where such right is held to have passed although the covenant had already been broken, the conveyance has been one- with warranties. It is not necessary now to decide whether or not a warranty deed should be deemed to operate as an assignment of a claim for damages for a broken covenant, but we hold that a mere quitclaim does not do it. 2. The plaintiff contends that whatever effect the want of possession by the grantor in a warranty deed might otherwise have upon the question whether its convenants run with the land is removed by the statute reading: “Any person claiming title to real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest therein, in the same manner and with like effect as if he was in the actual possession thereof.” (Gen. £>tat. 1915, § 2055.) He asserts that such is the purpose of the stat [607] ute, that it has been so interpreted by the supreme court of Missouri in Vancourt v. Moore, 26 Mo. 92, 96, decided in 1857, and that that interpretation is binding upon this court. It is true that the statutes of Missouri contain a section in the language quoted antedating the creation of the territory of Kansas, and the section was enacted by our legislature in 1868. But it was first adopted by Kansas in 1855, in the course of the assimilation of practically the entire statutory law of Missouri. (Gen. Stat. 1855, ch. 26, § 4.) In 1859 the whole act of which it was a part was repealed and a new one substituted which contained a section reading: “Adverse possession of real property does not prevent any person from selling his interest in the same.” (Laws 1859, ch. 30, § 5.) In 1868 the original act was readopted with some changes, none of which affected this section. (Gen. Stat. 1868, ch. 22, § 6.) An interpretation placed upon the statute by the court of last resort of Missouri in the interval between the repeal and reenactment of the section in question is not binding on this court. The second enactment was an adoption rather of the earlier Kansas law than of the Missouri statute with such construction as had in the meantime been placed upon it. A Missouri decision, to fall within the principle invoked, should have been rendered before 1855. 3. Moreover, the Missouri decision did not amount to a definite interpretation of the statute. In the course of the opinion of one of the judges, it was said: “The fourth section of the act concerning conveyances empowers any person claiming title to any real estate, notwithstanding there' may be an adverse possession thereof, to sell and convey his interest therein in the same manner and with the like effect as if he was in the actual possession. It is conceived that this provision does away with that rule of the common law which required a grantor of land to be seized thereof, when he makes his deed of conveyance, in order that his covenant of warranty may attach to and run with the land. This section was introduced to enable persons having claims to land without possession, or even in case of adverse possession, to alien such lands as though they were seized thereof.” (p. 96.) The section was referred to in Allen v. Kennedy, 91 Mo. 324, 330, “as having some bearing on the question” of covenants running with the land, and portions of the opinion in that case containing such reference were quoted in Coleman v. Lucksinger, 224 Mo. 1, 16, 27. These utterances, while tending in that direction, fall short of a definite determination that the statute has the effect claimed by the plaintiff. [608] In our judgment the sole purpose of the provision that a claimant may convey whatever interest he has in land, notwithstanding an adverse occupancy is to abrogate the common-law rule that the conveyance of land held adversely is unlawful, being in effect cham-pertous from its tendency to stir up litigation. (11 C. J. 254, 256; 5 R. C. L. 280; Richards v. Thompson, 43 Kan. 209, 23 Pac. 106). The judgment is affirmed.