Allis v. Nininger

• Decision Date: 13 March 1879
• Citation: Allis v. Nininger, 25 Minn. 525 (Minn. 1879)
• Parties: Lorenzo Allis, Administrator, v. John Nininger
• Court: Minnesota Supreme Court

25 Minn. 525

Lorenzo Allis, Administrator, v. John Nininger

Supreme Court of Minnesota

March 13, 1879

Appeal by plaintiff from a judgment of the district court for Ramsey county, where the action was tried before Brill, J., a jury being waived.

The judgment below is reversed, and judgment ordered for plaintiff as claimed in the complaint.

Allis & Allis, for appellant.

S. L Pierce, for respondent.

OPINION

Gilfillan C. J.

Action on a covenant of warranty in a deed of real estate, executed by defendant and one Goldsmith to Coffin, whose administrator is the plaintiff. The deed was executed in 1858. At that time and ever since, the title to the lands was in one Greve, who in 1869, brought two actions in ejectment for the lands against Coffin, in one of which final judgment was rendered in December of that year, in favor of Greve, for the recovery of the possession of a part of the real estate; and in 1876, final judgment was rendered in the other, in favor of Greve, for the possession of the remainder. The lands were all the time vacant, neither Greve nor Coffin having ever been in possession. Immediately after the determination of the first action, and after the commencement of the other, Coffin notified Greve that he made no further claim to the premises, and would not defend the second action. This action was commenced in proper time, if the breach happened at the time of this notice. The court below decided that the right of action was barred by the statute of limitations.

On the facts two questions arise: First. Was there, as is claimed by defendant, and seems to have been held by the court below, a breach of the covenant at the moment of the execution of the deed? Second. Did a breach occur, as plaintiff claims, when Coffin, after final judgment against him in the first action, notified Greve that he made no further claim to the premises?

With the first question we have but little difficulty. The covenant of warranty relates to the future, and not, as does the covenant of seizin or against encumbrances, to the present existing condition of things. Its obligation is to defend the title granted, against any who shall lawfully claim the premises in opposition to such title; and there can be no breach until a claim is so made, and a failure to defend against it. No case can be found which holds that the mere existence of a dormant paramount title in a third person, not asserted in any way against the covenantee's title, constitutes a breach. There must be an eviction, either an actual physical putting out, or, what is now regarded as equivalent to it, virtual exclusion, under the paramount title, of the covenantee from the peaceful enjoyment of his title. It was suggested, indeed, in Grist v. Hodges, 3 Dev. (Law,) 198, and Duvall v. Craig, 2 Wheat. 45, 4 L.Ed. 180, that there is an instantaneous breach, where, at the date of the covenant, there is a superior title in a third person, and he is then in actual possession of the premises under it. But in such a case the superior title is not dormant; there is an actual and very effectual assertion of it, and exclusion of the covenantee by means of it. Here, there was at the date of the covenant a superior title outstanding, and that is all. The holder did not make any claim under it against the covenantee, in any way, till 1869. It is true, as claimed by defendant, that the law regards the true owner as constructively in possession of vacant lands. This imaginary or fictitious possession is assumed, however, only so far as may be necessary to enable the owner to assert and protect his rights. It does not, of itself, amount to an assertion of them. That, the owner must do for himself; the law will not do it for him.

Treating of the covenantee's right to yield possession without contest to the superior title, the court, in Moore v. Vail, 17 Ill. 185, say, (p. 190,) "This however, is not to be understood as holding that the mere existence of a paramount title constitutes a breach of the covenant, or that it will authorize the covenantee to refuse to take possession when it is quietly tendered to him, or when he can do so peaceably, and then claim that by reason of such paramount title, and his want of possession, the covenant is broken; nor will it justify him in abandoning that possession, without demand or claim by the one holding the real title. His possession under...