Blaum v. May

• Decision Date: 13 January 1944
• Docket Number: 4 Div. 321.
• Citation: 16 So.2d 329,245 Ala. 156
• Parties: BLAUM v. MAY.
• Court: Alabama Supreme Court

16 So.2d 329

245 Ala. 156

BLAUM v. MAY.

4 Div. 321.

Supreme Court of Alabama

January 13, 1944

Certiorari to Court of Appeals.

C H. May brought suit against J. N. Blaum.

The complaint claims damages for the breach of a covenant entered into by defendant Blaum on October 10, 1932, "by which he promised that he would warrant and defend certain premises to H. L. Hillman, his heirs and assigns, forever, against the lawful claims and demands of all persons, which said covenant was contained in a warranty deed from the said J. N. Blaum and wife, Clara C. Blaum, to H. L. Hillman", a copy of the deed being made an exhibit to the complaint. It is averred that Hillman died intestate February 26, 1934, and at the time of his death owned the premises; that they descended on his death to his heirs at law, and plaintiff purchased said premises from said heirs February 14, 1935, said heirs conveying to him by warranty deed (copy of which is exhibited); that plaintiff conveyed a portion of the premises to Jeanette Poyner by warranty deed August 20, 1938 (copy of which is exhibited); that at or about the time plaintiff so conveyed, it became known to him that the City of Dothan claimed a lien on the premises for street paving that had arisen before defendant conveyed to Hillman, and that neither plaintiff nor Jeanette Poyner knew whether said lien was valid, but that plaintiff advised defendant of said claim and requested that he pay it, which defendant refused to do; that thereafter Jeanette Poyner filed a bill in equity against the City of Dothan and plaintiff May to determine the validity of said lien and it was by the court decreed that the lien of the city was valid, and since the premises had been conveyed by plaintiff by warranty deed decreed that plaintiff pay said lien and the costs of suit; that plaintiff gave defendant written notice of said decree and called upon him to make good his covenant to warrant and defend said premises by paying off said lien; that defendant failed to pay said lien and plaintiff paid the same, together with court costs.

The deed from Blaum and wife to Hillman, exhibited with the complaint, is in pertinent part as follows:

"Know all men by these presents, That we, J. N. Blaum and wife Clara C. Blaum, for and in consideration of Twenty Two Hundred Dollars and other valuable considerations to us in hand paid by H. L.

Hillman, the receipt whereof we do hereby acknowledge, do hereby grant, bargain, sell, enfeoff, and confirm and convey unto the said H. L. Hillman the following described real estate lying in the County of Houston, State of Alabama - towit: * * *

"To Have and To Hold the aforegranted premises to the said H. L. Hillman, his heirs and assigns forever.

"And we do covenant with the said H. L. Hillman, his heirs and assigns, that we are lawfully seized in fee of the aforegranted premises; that it is free from all incumbrances; that we have a good right to sell and convey the same to the said H. L. Hillman, his heirs, and assigns; and that we will Warrant and Defend the premises, to the claims and demands of all persons."

From a judgment for plaintiff, the defendant appealed to the Court of Appeals.

The opinion of the Court of Appeals here brought under review is as follows:

Rice, Judge. Quoting from appellant's brief filed here: "This is a suit brought by C. H. May against J. N. Blaum for breach of warranty of certain covenants in Blaum's deed to R. L. Hillman. The covenant set out in said deed is as follows: 'That he would warrant and defend said premises to R. L. Hillman, his heirs, and assigns, forever, against the lawful claims and demands of all persons."'

Appellant's brief goes on to state: "The complaint sets up covenant or warranties from Blaum to R. L. Hillman, his heirs and assigns. It is a contract between Blaum and Hillman, and limited to him, his heirs and assigns. It would broaden the contract, and cause to be made into it what is not carried in the contract to say that it embraces the assigns or grantees of the heirs of R. L. Hillman. May was a grantee or assign of the heirs of R. L. Hillman to the property in controversy. The complaint sets up these facts fully."

There is but a single question presented for our consideration: Did the trial court err in overruling appellant's demurrers to the one count of appellee's complaint claiming damages as above?

It seems the question may be answered quickly and easily in the negative. So far as we can see, no statement is necessary, further than is quoted above from appellant's brief.

The law governing appears to us to be as well stated as is requisite for our purpose in the excerpts (with authorities) which we here quote from the opinion by our Supreme Court in the case of Prestwood et al. v. McGowin, 128 Ala. 267, 29 So. 386, 389, to-wit: "Mr. Tiedeman says: 'Like covenants of quiet enjoyment, until a breach has been committed, a covenant of warranty runs with the land into the hands of the assignee and heirs, and may be sued upon by the assignee or heir who is in possession when the breach occurs, whether the alienation is voluntary or involuntary. * * * The assignee in possession at the time of the breach is generally the only person who can maintain an action upon the covenant.' Tied. Real Prop. § 860. Covenants for quiet enjoyment, of warranty of title and for further assurances are held to be prospective in their character, run with the land, and are not broken until eviction. Rawle Cov. §§ 204, 205, 316."

We have examined the large number of authorities cited to us by the respective counsel, but find nothing contrary to the principles of law we have quoted above. It seems a useless consumption of time and space to here discuss the various cases to which we have been referred.

Appellant's contention, which we have quoted hereinabove, is unsound.

The grounds of demurrer to the complaint which he has argued here were properly overruled.

The judgment is affirmed.

Affirmed.

W. L. Lee and Alto V. Lee, III, both of Dothan, for the petition.

Tompkins & Ramsey, of Dothan, opposed.

THOMAS Justice.

This is a petition for certiorari to review the decision of the Court of Appeals.

The decision is rested on the case of Prestwood et al. v. McGowin, 128 Ala. 267, 29 So. 386, 86 Am.St.Rep. 136, where the rule that obtains as to such suit is stated. On the second appeal to this court [Prestwood v. McGowin, 148 Ala. 475, 41 So. 779], the rule announced on the first appeal was adhered to, as we shall indicate.

The questions of pleading in cases of this character are considered in Garner v. Morris, 187 Ala. 658, 65 So 1000; Youngerman-Reynolds Hardwood Co. v. Hicks, 236 Ala. 138, 181 So. 111, wherein the rule as stated by the Court of Appeals was adhered to as the applicable procedure. And in Keel v. Ikard, 222 Ala. 617, 133 So. 906, 907, the early and later decisions are collected together with the text book rule. It is said therein as follows: "The general warranty above set out is in legal effect a covenant for quiet enjoyment, 'an assurance against the consequences of a defective title, or of any disturbance in the enjoyment of the land conveyed,' which means the full title and estate the deed purports to grant, and, of consequence, is a covenant against disturbance by any incumbrancer. It runs with the land, is breached only when quiet enjoyment is disturbed, and the cause of action is in the owner at that time. Caldwell v. Kirkpatrick, 6 Ala. 60, 41 Am.Dec. 36; Musgrove v. Cordova, etc., Co., 191 Ala. 419, 67 So. 582; Prestwood v. McGowin, 128 Ala. 267, 29 So. 386, 86 Am.St.Rep. 136; ...