Birney v. Hann

• Decision Date: 14 April 1821
• Citation: 10 Ky. 322
• Parties: James Birney v. John Hann.
• Court: Kentucky Court of Appeals

10 Ky. 322

James Birney v. John Hann.

Court of Appeals of Kentucky.

April 14, 1821

ON A WRIT OF ERROR TO REVERSE A JUDGMENT OF THE MERCER CIRCUIT COURT.

Bridges for plaintiff.

Crittenden for defendant in error.

OPINION

MILLS JUDGE:

John Hann brought his action of covenant in the court below against James Birney, and declared on a deed of conveyance with general warranty, for a half acre lot of ground in the town of Lancaster, executed by said Birney, in consideration of seven hundred dollars, to Stephen Perkins. And to shew himself entitled to the action, as an assignee of the covenant, he sets out in his declaration a deed of like warranty, executed to him, the plaintiff below, by the said Perkins. He next sets forth a deed with the same warranty to William Fields and James Dunn, made by himself. He then alleges a breach of the warranty by a judgment of eviction against the said Fields and Dunn, by the heirs of Michael Miller, who claimed and held a title paramount to that conveyed by Birney, and existing at the time of Birney's conveyance. To this action Birney appeared, and, among other pleas on which issues were joined, he pleaded one to the following effect, after craving oyer of his own deed declared on:

" That prior to, and at the date of, the deed of Stephen and Joseph Perkins, set forth in said plea, the said Stephen and Joseph was indebted to, and bound to pay him, said Birney, the sum of money in said deed mentioned, and in payment of and satisfaction of said demand, they, said Stephen and Joseph, did make and execute to this said then defendant, a deed of conveyance for the lot in the declaration mentioned, which was dated the 8th of March 1804, of which profert was made, which deed was received as executed by him, said Birney, in satisfaction of said demand against said Stephen and Joseph Perkins. And afterwards, on the 31st of March, 1804, he, said Birney, at the special instance and request of said Stephen and Joseph Perkins, and for the purpose of enabling him, said Joseph, to make a more advantageous disposition of said lot, did reconvey said lot to said Stephen Perkins, by the deed in the declaration mentioned, and received from the said Perkins payment of the debt and demand due by said Perkins to him. And he avers that the said deed was executed by him to said Stephen Perkins for no other cause and consideration than in said plea stated."

To this plea the plaintiff below demurred, and the court sustained his demurrer. A verdict and judgment was rendered for him and the defendant below has prosecuted this writ of error.

It is now contended by the assignment of error, that as Hann, by his own shewing, had conveyed away the lot with warranty before it was evicted, he cannot have his action against Birney, a remote grantor, but the action can only be sustained by the last grantee. It was a general rule in England, that he who had conveyed away the estate, with a covenant of warranty which run with the land, could not sustain a warrantiae chartae; but it might be brought by the last grantee, and each grantee must vouch his warrantor to the end of the chain. This remedy being extinct in this country, it has been decided that an action of covenant lies in its stead against a remote grantor. See Booker's adm'r v. Bell, 3 Bibb, 173, 4 Bibb, 225.

An action of covenant lies on a warranty against a remote grantor.

But the question, whether an intervening grantee, who had conveyed away the estate, can support the same action against a remote grantor, has never yet been decided. On this question we need not look for any aid from English precedents, where such an action of covenant was not indulged. In this case the plaintiff below has averred that Fields and Dunn, who were evicted from the lot, recovered a judgment against him on his warranty for the value of the land, with interest and costs which judgment he had fully paid and discharged before the commencement of this suit. If this statement in the declaration can be material to, or aid him in, support of his action, as it is not contradicted by any plea, it must be taken as true, and the plaintiff below is entitled to the benefit of these facts. The question remains, will they affect his case and enable him to support his action? As Hann would have been entitled to the action if he had never conveyed--as he has been subjected to the action, because he had conveyed--as the estate passed by the title has gone into other hands--and his deed to Fields and Dunn can be of no more avail to them, because they have once had the benefit of it, and it is now inoperative against Hann, because it is merged in the judgment against him, and discharged by the payment of that judgment, we see no good reason why Hann should not be adjudged to have the right of action revested in him and be restored to all he had parted with, by his deed, as much so as if Field and Dunn had reconveyed. As the endorser of a commercial instrument, who has paid its contents, can sustain his action against his remote endorser without a reindorsement, because his own endorsement by the act of payment, per se, has become functus officio, as to him, so ought Hann, who has rendered his own deed inoperative further against him, be restored to the...