Allen v. Caffee

• Decision Date: 27 March 1905
• Citation: 85 Miss. 766,38 So. 186
• Court: Mississippi Supreme Court
• Parties: ASA W. ALLEN v. WALLACE E. CAFFEE

38 So. 186

85 Miss. 766

ASA W. ALLEN v. WALLACE E. CAFFEE

Supreme Court of Mississippi

March 27, 1905

FROM the circuit court of Lee county, HON. EUGENE O. SYKES, Judge.

Allen the appellant, was plaintiff, and Caffee, the appellee defendant in the court below. From a judgment only partly in plaintiff's favor he appealed to the supreme court.

The suit was to recover the balance due on the purchase money of a lot of land in the town of Verona, Mississippi. Caffee interposed a special plea to the declaration, setting up that Allen had made him a warranty deed to said property, by the terms of which he covenanted that he was seized of, and would deliver to him the possession of, the property, and that he had violated such covenant by refusing to deliver possession and that, in order to get possession, he (Caffee) was forced to bring an action of unlawful entry and detainer against one Reifus, who was in possession under a contract of purchase from Allen made previous to the conveyance to Caffee; that in such proceeding he employed counsel, and incurred other expenses incident thereto, and had lost some rents and the profits of a certain brick factory business established on the lot, and asked for a set-off to the amount of his expenses and damages. The court instructed the jury, for defendant, that, if Allen failed and refused to deliver possession to Caffee, it was a breach of the warranty in the deed, and Allen was liable to Caffee for the expenses of getting possession of the property and for any profits lost by him on account of not getting possession. The jury rendered a verdict for plaintiff, but allowing the sum of $ 125 as a set-off to plaintiff's demand, and judgment was entered accordingly.

Affirmed.

Allen &amp Robins, for appellant.

The deed made by Allen, the plaintiff, to Caffee, the defendant, was an ordinary deed under our statute: "I convey and warrant." There was nothing else in the deed from which any covenant of any kind could be inferred. Now, what does "I convey and warrant" mean? The statute defines what it means. "Convey" is the granting clause, not a warranty at all, nor a covenant. It is made effectual by the statute (Code 1892, § 2479) to transfer all right, title, claim, and possession of the person making it, but it implies no covenant and no warranty. The word "warrant" is defined by Code 1892, § 2480, where it is said that "the word 'warrant' without restrictive words, in a conveyance, shall constitute a covenant by the grantor, that he and his heirs and personal representatives will warrant and defend the title of the property unto the grantee and his heirs, representatives, and assigns, against the claims of all persons whomsoever lawfully claiming the same." Now this is the only covenant in the deed in question; warrant is the only word that can be made to imply a covenant; and the statute says that the word "warrant" means to defend against the claims of all persons whomsoever lawfully claiming the same.

If some one does not lawfully claim the property granted, by title paramount to that of the grantor, there is no breach of this covenant. There must be a lawful claim or a lawful withholding in order to constitute a breach of this covenant. It is simply a covenant of title, nothing else; not a covenant of seizin, but a covenant of title--a covenant that the grantor will warrant and defend the title of the property, not that he will warrant and defend the seizin.

To take the view of this case taken by counsel for appellee and by the court below, that a covenant of seizin is implied in a conveyance under the statute, would upset the whole purpose of our statute making conveyance and transmutation of property easy. If such position be maintained, that paramount title or paramount holding is not necessary to constitute a breach of warranty of title, it would be dangerous for any owner of any storehouse or residence or farm in the state of Mississippi to sell and convey the same under our statutory deed without going to the property itself with the grantee and dispossessing every tenant and occupant of the same and turning over the actual manual property to the grantee. No man would dare sell a storehouse or a residence or a farm which he had rented, for fear the occupant might unlawfully and without grounds set up some false and fraudulent and unlawful title against the grantee, and then the grantor would be bound to defend the suits that would grow out of unlawful claims and compensate the grantee for any kind of forfeits that he might have made if the possession had been promptly delivered to him. The contention of appellee would make feoffment with seizin an easy process for conveying property compared to the conveyancing provided for by our statute.

This is not an open question in Mississippi, we see from the rulings of our court the question has been settled that there is no breach of warranty of title unless there is a paramount outstanding title or a holding under such a paramount outstanding title. We refer to the following decisions supporting this view: Hoy v. Taliaferro, 8 Smed. & M., 727; Duncan v. Lane, 8 Smed. & M., 744; Heath v. Newman, 11 Smed. & M., 201; Dennis v. Heath, 11 Smed. & M., 206; Burrus v. Wilkinson, 31 Miss. 537; Kirkpatrick v. Miller, 50 Miss. 521; Witty v. Hightower, 12 Smed. & M., 481; Cassidy v. Jackson, 45 Miss. 398; Gunn v. Ervin, 54 Miss. 451.

Anderson & Long, for appellee.

We do not controvert the proposition that under the laws of this state there is no breach of warranty of title unless there is a paramount outstanding title, or a holding under such paramount outstanding title. The cases cited by opposing counsel fully sustain that proposition. Counsel on the other side are talking about one thing, and we about another and very different thing. We contend that our statutory warranty deed is a covenant of seizin in the grantor--a covenant to deliver possession to the grantee--as well as a covenant to defend the title. We know of no Mississippi case in point. We do not think the cases cited in the brief of opposing counsel are in point. "The statutes of...