Russ v. Perry

Foster, J. A right of dowser, although inchoate and contingent, [550] is so far an existing incumbrance upon the lands to which it attaches as to be within the operation of the usual covenant against incumbrances. Eawle on Covenants 109-111; Piatt on Covenants *337 ; Sheppard’s Touchstone *171; 2 Scribner on Dower 3-5; 3 Wash-burn on Real Property 393. The dictum of Mr. Justice Story to the contrary, expressed in Powell v. Manson & Brimfield Manf. Co. 3 Mason 355, and cited by the plaintiff, has not been overlooked, but has been considered by the court, in subsequent cases, with the attention and respect due to the cliota even of so eminent a jurist, but the opposite conclusion is now' so firmly established that it can no longer be considered an open question. Prescott v. Trueman, 4 Mass. 627; Shearer v. Ranger, 22 Pick. 447 ; Jones v. Gardner, 10 Johns. 266 ; Gazley v. Price, 16 Johns. 268, and a great many other cases cited in note 3 to 2 Scribner on Dower 4. And in our own state the principle is clearly established as a settled rule of law, by the decisions in Fitts v. Hoitt, 17 N. H. 530, and Fletcher v. The State Capital Bank, 37 N. H. 397. By the will of John Russ, admitted to probate in 1861, the demandant took, as legatee and devisee, substantially the whole estate, real and personal, of her deceased husband, of which estate it is conceded the portion devised is of more than sufficient value to respond to the damages which might be recovered in actions upon the covenants of her husband, contained in his mortgage deeds, after deducting her dower. And if the plaintiff should be permitted to recover in this action, the defendant would then have his action against her for damages equal to the value of the dower recovered by her; because there exists no remedy against the executor in this state. If this court had jurisdiction originally, the right of recovering against the executor would be barred by the statute of limitations, Gen. Stats, ch. 179, § 5 ; Rev. Stat. chap. 161, § 5; no estate being retained in his hands for the payment of contingent claims. In Hall v. Martin, 46 N. H. 337 ; it was held, upon great consideration, that while “ at the common law the heir was liable on the covenants of his ancestor in which he was specially bound, just so far and no farther, as he had assets by descent, and, as real estate alone descended to him, his liability was limited to that, yet, when by our statute, the personal estate is made to descend to him, substantially in the same way, a correct application of the common law principle requires it to be treated as assets in his hands, equally with the real estate ; and it was therefore held, that such heir is liable on the covenants of his ancestor which could not have been proved while the estate was in the course of administration, to'the extent of tha personal as well as the real estate which has so descended to him.” And it was also held in the same case, that suits against the heir or devisee are not bound by the statute limiting actions against executors or administrators, but that the limitation applies only to suits against them; and that, therefore, “the' remedy against the heir or devisee upon [551] claims which could not be proved within the three years limited by the statute, because contingent, is not impaired by those provisions, but remains as in the case of insolvent estates.” And the remedy is held to apply as well to the devisee as to. the heir. It is therefore unnecessary to revive the consideration of the argument invoked by the decision in Ticknor v. Harris, 14 N. H. 272; where it is held that legatees are exempted from the rule in-forcing liability upon them to make good the covenants of their testator, the plaintiff having assets as devisee beyond the value of her dower, sufficient to satisfy the defendant’s claim. For a critical review of Tichnor v. Harris, see the opinion of the court in Hall v. Martin, supra. The defendant in this cause, being the tenant and grantee in possession, deriving his title from the deceased, John Russ, through successive deeds of warranty, with the usual covenants, would be the plaintiff in an action against the present demandant founded upon the breach of the covenants of warranty by the original and intermediate warrantors, such covenants running with the land, Williams v. Burrell, 50 Eng. Com. Law, 401; Lewis v. Campbell, 8 Taunton, 715 ; 4 Eng. Com. Law, 350; Moore v. Merrill, 17 N. H. 75; Chase v. Weston, 12 N. H. 413 ; 4 Kent Com. 471, 2. In Moore v. Merrill, and also in the prior case of Haynes v. Stevens, 11 N. H. 28, it is said that covenants against incumbrances are not assignable. The contrary is held in Ohio, Foote v. Burnet, 10 Ohio 317, 333, and in South Carolina, McCrady v. Brisbane, 1 N. & McC. 104, aud such also seems to be the prevailing doctrine in Massachusetts, Sprague v. Baker, 17 Mass. 586 ; Tufts v. Adams, 8 Pick. 547 ; Thayer v. Clemence, 22 Pick. 490 ; Whitney v. Dinsmore, 6 Cush. 124. But this consideration is not material in the present case. The original mortgage and the subsequent conveyances through which the defendant derives his title, are said to have contained in full the usual covenants, that is, of covenants seizin, right to convey, and against incumbrances, all which import a general warranty for quiet enjoyment of the premises by the grantee, his heirs aud assigns. Concerning the remedy in case of breach of these covenants, Mr. "Washburne, with his usual accuracy and clearness, says: “Much that has been said of the covenant of seizin aud right to convey, may be applied to the covenant against incumbrances. If there be an incumbrance, the covenant, being in praesenti, is broken as soon as made. But incumbrances are so various in their description and character, that the same rule cannot well be applied to all. Some of them, like an existing right of way over the premises, or a permanent easement, are as much incumbrances when the deed is made as they ever can be; and, of course, actually diminish and detract from the value of the estate at that time. Other incumbrances like an existing right of dower, or an outstanding mortgage, may or may not impair the value of the premises conveyed, according as [552] these claims arc or are not enforced. The person entitled to dower may die before having it set out, or the mortgagor may pay the mortgage debt and relieve the estate. If in the cases first supposed, the covenantee sues upon his covenant, he recovers the damage which the estate sustains by the existence of such a permanent in-, cumbrance. In the other, he can only recover nominal damages until it shall have been ascertained that the widow or mortgagee will enforce their claim, and he has paid or satisfied the same. Suppose that such a grantee conveys the estate to a third person, by a deed of quitclaim or other deed not of warranty, and the dower right or mortgage is then enforced, for the first time, against the last named purchaser, and regarding the first grantor’s covenant, as to these encumbrances, as one in jpraesenti, the second purchaser would be without a remedy against him, being a mere assignee of a covenant, broken before assignment was made. But if he shall be evicted by the enforcement of the widow’s or mortgagees claim, these being paramount titles to his, he may avail himself of the covenant of warranty, if there were one contained in the first deed, disregarding altogether that against incumbrances.” 3 Washb. on Real Prop. 391, 392. See also 2 Scribner on Dower 4, 5 ; Rawle on Covenants, 238-253 ; and it has been held that where dower is claimed and assigned, or the value thereof assessed, a covenant for quiet enjoyment is broken, Lewis v. Lewis, 5 Rich. L. 12. But in Moore v. Merrill, it is distinctly holden, that the covenant of warranty, if possession attend the title assumed to be made by the deed, runs with the land. Possession by the defendant is essential, because without such possession there can be no eviction, which is indispensable for laying the ground of an action upon the covenant of warranty, and it was also held in that case that if the maintenance of the plaintiff’s action establishes the right in the defendant to recover an equivalent of the plaintiff, the fact may be availed of by the defendant as an estoppel, as in the case put by Coke, who says that the reason is for avoiding circuity of actions. Co. Lit. 265 a, or, as -was said in Haynes v. Stevens, 14 N. H. 33 : “ In order that the covenant should operate by way of rebutter, it must appear that if the plaintiff should recover in this suit, the defendant might thereupon recover the same amount of him in a suit upon his coveuant.” And in 1 Washb. Real Property 238, it is said : “ A widow may be estopped or rebutted from claiming dower by the covenants of her ancestor from whom she has received assets. Thus, the land of A was sold on execution and bought by B, who conveyed it with covenants of warranty. A’s wife was heir at law to B, and on his death received assets by descent. A and B having both died, she sued for clowur as widow of A. But the court held that she could not claim it against the covenants of B, since what she recovered as dower, she would have to respond for as heir.” Torrey v. Miner, 1 S. & M. Ch. 489 ; Bates v. Norcross, 17 Pick. 14. Upon these considerations, we are of the opinion that the demand553 ant is not entitled to recover her dower in this action.. The defence which we have indicated may be made available to the defendant under the plea of ve ungues seisie que dower, which is, perhaps, ordinarily considered the general issue in this action. See 2 Scribner on Dower 91, 126 ; Steph. on Pl. 9th Am. Ed. App. lvi, Note 43 ; 3 Chitty Pl. 1317.