Beach v. Miller

• Decision Date: 30 September 1869
• Parties: LUCRETIA A. BEACHv.W. Y. MILLER.
• Court: Illinois Supreme Court

51 Ill. 206

1869 WL 5304 (Ill.)

2 Am.Rep. 290

LUCRETIA A. BEACH

v.W. Y. MILLER.

Supreme Court of Illinois.

September Term, 1869.

WRIT OF ERROR to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

The opinion presents the facts fully.

Mr. H. N. KEIGHTLY and Messrs. WILLIAMS & CLARK, for the plaintiff in error. Where a party conveys land, through which a railroad runs, with covenants of warranty of title in fee simple, free from all incumbrances, such right of way is an incumbrance upon the fee, and constitutes a breach of the covenant against incumbrances. 2 Washburn, p. 706; Barlow v. McKinley, 24 Iowa Reports.

A covenant to maintain a division fence is an incumbrance. Kellogg v. Robinson, 6 Vermont 627.

This is not a parallel case with one where a public road runs across the land, though even in such case very respectable courts have held the warrantor liable. Such is the case of Kellogg v. Ingersoll, 2 Mass. p. 97, where PARSONS, C. J., delivered the opinion; and Rawle on Covenants, p. 118, says that the current of authority has set strongly in favor of the ruling in Kellogg v. Ingersoll, and that in all the New England States it has been settled that a public highway does constitute at law a breach of the covenant against incumbrances. Butler v. Gale, 1 Williams' Vt. 742; Paints v. Whitney, 3 Gray's Mass. 576; Hubbard v. Norton, 10 Conn. 431.

Mr. A. M. CRAIG, for the defendant in error.

It is not a breach of covenant to include, in a conveyance of land, a part which was occupied and used as a public highway; the seizin and right to convey remains in the owner of the land on which the highway is. Whitebeck v. Cook et ux. 15 Johnson 482.

If one should convey land, and reserve from the operation of his deed so much of the land as was then occupied by a right of way, such land would, upon an abandonment of the right of way, revert to the grantor, and such reversionary interest was a right that could be conveyed, and might be included in the conveyance. Yates v. Hathaway, 15 Johns. 452. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of covenant, brought by plaintiff in error, in the Knox Circuit Court, against defendant in error, to recover damages claimed to have been sustained by reason of an alleged breach of covenants contained in a deed, by which the latter conveyed to the former the east half of the north-east quarter of section 35, in township 11 north, of range 2 east, except four acres in the south-east corner, south of “Middle Prairie road.” The covenant contained in the deed, and upon which this action is founded, is this:

“And the said party of the first part, for himself and his heirs, executors and administrators, does hereby covenant to and with the said party of the second party, her heirs, executors, administrators and assigns, that he is well seized of the premises above described, as of a good and indefeasible estate of inheritance in fee simple, and has good right to sell and convey the same in manner and form aforesaid; that the above described premises are free from all incumbrances, and that the above described premises, in the quiet and peaceable possession of the said party of the second part, her heirs or assigns, against the claims of all persons whomsoever, he will forever warrant and defend.”

Breaches are assigned on each of these covenants, in the usual form. A large number of pleas were filed, and issues joined on a part of them, and demurrers sustained to the others, and a trial was had before the court and a jury, resulting in a verdict and judgment in favor of defendant.

On the trial below, it appeared that the defendant in error, on the 27th day of September, 1855, conveyed the right of way across the land described in the deed sued upon, to the Peoria & Oquawka Railroad Company. The consideration mentioned is one hundred dollars, but the width of the right of way is not mentioned, nor is it located by description in the deed. But the evidence shows that the road is constructed across this land and is in use by the company. It also appears that the company claims one hundred feet in width and eighty-one and one-half rods in length across the land. It also appears that the railroad was in the use and occupancy of this strip of land at the time plaintiff purchased, and that he was aware of the fact, but nothing seems to have been said in reference to it, at the time or previous to the sale. Plaintiff in error claims that this is such an incumbrance as creates a breach of the covenant against incumbrances, but defendant insists that it is not, and that the action cannot therefore be maintained. There is nothing which shows that there was any reservation of this right of way from the operation of defendant's deed. He conveyed the tract as a whole, except the four acres, which does not apply to this right of way. The deed, by its terms, conveyed all of the lands embraced within the lines of the description, except the four acres it reserved, and this strip passed as effectually by the conveyance as any other three acres in the tract. And the fee to this strip no doubt passed to and vested in plaintiff as did the balance of the land embraced in the deed. The conveyance to the railroad only purports to convey the right of way and not the fee to the land. Even if it was capable of taking the fee, the deed does not purport to convey it.

The husband's right to the curtesy is contingent, and until it vests he has no present interest in the land. It does not vest in the husband until the death of the wife; and until he has a present interest he has no right to sue. In this case, the land belongs to the wife, and she may, as...