Birney v. Haim
| Decision Date | 09 December 1822 |
| Citation | 12 Ky. 262 |
| Court | Kentucky Court of Appeals |
| Parties | BIRNEY <I>v.</I> HAIM. |
This is an action brought by the appellee, to recover of the appellant the value of a lot in the town of Lancaster, which had been conveyed by the appellant, with warranty, to Stephen Perkins, and by Perkins to the appellee, and lost by a paramount title, and is the same that was brought before this court on a former occasion, and reversed at the spring term, 1821; in the report of which case a more full detail of the circumstances may be seen.
It does not appear, by any entry on the record, that the declaration was amended, after its returns for further proceedings, pursuant to the mandate of this court. But the declaration now certified is widely different from what it appeared formerly; omitting all that matter for which it was then adjudged vitious, which leads to the conclusion, that the declaration was in fact amended, without any note upon the record, and the parties appear to have commenced the pleadings, de novo, without any regard to the former pleadings. To this new declaration the appellant again demurred, and relied for cause that the action was local, and that, as the declaration showed that the lot conveyed and warranted was in Garrard County, and this action was brought in Mercer, it could not be sustained. The court below overruled the demurrer, and the propriety of this decision forms the first question now presented for our decision.
As said in the former opinion in this cause, this is an action unknown in England, but tolerated in this state, since the abolition of vouchers by statute, lest there should be a defect in remedy. It is based on the fact, that the covenant runs with the land, and is transferred from one grantee to another; so that the first warrantor, in point of time, may be first made responsible. The action of covenant, is, in its nature, generally transitory, and may be brought in any court of competent jurisdiction; and we might be disposed to bring this action within the general rule, if we could do so, in consistency with other principles of common law. To the general rule, however, there are exceptions, and under these exceptions, both the actions of debt and covenant sometimes become local. The principle which determines whether an action of this nature is local or transitory is simply this: If the action is founded on privity of contract between the parties, then the action, whether debt or covenant, is transitory. But, if there is no privity of contract, and the action is founded on privity of estate only, such as a covenant that runs with the land in the hands of remote grantees, then the action is local, and must be brought in the county where the land lies. See Bacon's Abri. Title actions, local and transitory, 1 Saunders, 238. Testing this action by this rule, it is indubitably local; for it is founded on the privity of estate between the appellee and appellant, and not on any contract made directly between them; but on the covenant of the appellant, which runs with the land, and to which the appellee has subsequently become a party, without the express consent of the appellant. So strong is this principle throughout the books, that it includes all cases of leases assigned, so that the lessor could sue the assignee on the privity of estate, only in the county where the land lay. It is true, the case of Thursby v. Plant, before quoted from Saunders, was exempted from the influence of the principle; but this was done by the force of the statute of 32 H. 8., C. 34, which was adjudged by its expressions, used in the omnipotence of their parliament, to carry with it the privity of contract as well as the privity of estate; and even that case was, prima facie, disapproved in the exchequer chamber. It, however, afterwards, as the editor observes, became a leading case, and was followed as law, as will appear by the cases collated in the notes. We cannot, therefore, except this case from the rule, and it must be governed by principles which govern analagous cases.
The question then arises, can this be taken advantage of, upon general demurrer. It is said, in 1 Saunders, 241, N. 6, that it can, although it may be aided by a verdict according to the statute 16 and 17, Car. 2 C. 8, and in the case of Thursby v. Plant, it was moved in arrest of judgment, on the ground of its appearing on the face of the declaration; and in that case, no doubt is suggested that the objection came too late. But the statute, which transferred the privity of contract alone saved the action. It is a rule on this subject, that if the court has no jurisdiction of the subject matter, it is not necessary to plead it in abatement; but it may be given in evidence under the general issue. Here, however, the circuit court of Mercer has jurisdiction between these parties, and as to subject matters arising within the precincts of the county, its jurisdiction, even in actions of this nature, is as general by statute as the courts of Westminster as to the realm of England, and the defect in this instance, is owing to the land with which the covenant runs, lying without the county. If the statute 16 and 17 of Car. 2, is broad enough to cure such defects after verdict, we cannot see why our statutes of jeofails, which are equally broad, might not here cure the defect. But as our statute does not prevent the party from taking the advantage of the matter upon demurrer, where the declaration discloses the fact, we cannot say that the appellee is precluded from attempting it in this manner.
But there is still another objection to the appellant availing himself of this matter at this stage of the action. It goes to the propriety of the suit being brought where it is, and defeats the writ itself, on a point which cannot touch the merits; and as the cause has been before this court and reversed in favor of the appellant, and a mandate returned for further proceedings, ought he now to be permitted to travel back to the writ, and avail himself of the objection of which he might have availed himself in the court below on the first trial, and which he might have relied on in this court, when he was first here on a writ of error? It may be said in answer to this, that this objection was apparent to this court on that occasion, and the declaration was brought before the court on demurrer, and it ought then to have been decided, and as it was then omitted, he has now a right to present it. If it be admitted that this court could then have reached the question, but omitted to notice it, it does not thence follow, that the party would have a right to present it on another occasion. As well might it be said, that having failed to assign a palpable error on the first occasion, he has a right to bring another writ, and then assign it. It has been the undeviating rule of this court, that when the party has tried his right once on a writ of error, relying on sufficient points, he is presumed to have waived all others, however sufficient they may be. In like manner, if the court itself should pretermit improvidently, sufficient points to destroy the writ, well made,...
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