Chambers' Administrator v. Smith's Administrator

LEONARD, Judge, delivered the opinion of the court. The questions here are the same that were involved in the case of Dickson & Gantt v. Desire’s adm’r, (ante, p. 151,) and we refer to the opinion in that case for the principles that must govern us here, and shall proceed at once to make an application of them. Our statute covenant of seizin runs with the land until some damage results from the breach of it; when the right to a substantial recovery arises, the covenant is then broken ; the owner of the estate is entitled to the benefit of it, and his cause [179] of action will be considered to have- then accrued witbin tbe meaning of tbe statute of limitations. If there be a total defect of title, defeasible and indefeasible, and tbe possession have not gone along with tbe deed, tbe covenant is broken as soon as it is entered into, and can not pass to an assignee upon any subsequent transfer of tbe supposed right of tbe original grantee. In such case, tbe breach is final and complete ; tbe covenant is broken immediately, once for all, and the party recovers all tbe damages that can ever result from it. If, however, tbe possession pass, although witbg an estate in fact, although not in law, be tran deed, and tbe grantee have the enjoyment of th8rpi¡ cording to the terms of tbe sale, the covenant land and passes from party to party, until tbe fpa]g results in some damage to tbe actual possesson^ano right of action upon the covenant vests in tbe partyi _the loss falls ;\ and we so held at the present term, in the case to which I have referred. In the present case, however, the possession did not accompany the deed from Thomas E. Smith to Elias B. Smith; and if no right were transferred by that transaction, the covenant was incapable of running with the land, and the right of action accrued immediately, and of course was barred by tbe limitation referred to. It is to be observed, however, that tbe legal title did pass, and although the first grantee was seized, yet it was not an indefeasible seizin in fee, if it be true that tbe title transferred was liable to be defeated by the contract of sale entered into with Mrs. Todd. Upon an express covenant of seizin, merely, it might be otherwise ; but it can not be so under the statute covenant, where tbe obligation imposed is that tbe party is seized of an indefeasible estate in fee simple. When Mrs. Todd’s contract of purchase, which was put upon the record, was completed, she had a right to demand tbe legal title from tbe original vendor, or from Elias B. Smith and bis successors, who purchased in legal contemplation with notice of the lien of Mrs. Todd’s contract. This contract was completed and subsequently enforced against the [180] original grantor, or, rather, against his estate, by an administrator’s deed, made under an order of the proper tribunal for that purpose, and the present cause of action then accrued, and to the party who then owned the title derived from Thomas Smith through Elias Smith. The inferior court erred, therefore, in declaring that it accrued, if at all, when the original deed was made, and was barred by the lapse of three years from the grant and notice of administration. In reference both to the limitation and to the person entitled to the benefit of the covenant, we look in a case of the present character to the right of substantial recovery, and will not hold a party barred by the lapse of time which ran before he was allowed to recover (for we make no distinction here between no recovery and a mere nominal one) ; nor will tfe deny the action, allowed only in respect to the actual damage, to the party upon whom it has fallen, and allow it to the orginal grantee, except se-far as he may be bound to indemnify his immediate grantee by reason of his own covenants. We remark, in conclusion, that the parties have proceeded before us upon the idea that the administrator’s deed divested the legal title out of Chambers, to whom it had come through Elias B. Smith, and, whether it had this effect or not, by relation to the time of the contract or otherwise, can not be material to the real rights of these parties ; for, if it had not, and the legal title were still in the party to whom it had passed, it was but the dry, naked title, held in trust for Mrs. Todd, and subject to be divested, as a matter of course, upon a proceeding for that purpose, founded upon the original contract and subsequent acts. And we may dispose of the case, for the present at least, upon the grounds upon which it has been placed, as the right of action certainly, under the view now taken of the law, did not accrue before, the making of the administrator’s deed, as the court below declared. The judgment is reversed, and the cause remanded ; Judge Hyland concurring.