Brown v. Metz
| Decision Date | 31 January 1864 |
| Citation | 85 Am.Dec. 277,1864 WL 2930,33 Ill. 339 |
| Parties | JAMES BROWN, impleaded, &c.,v.JOHAN METZ. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Circuit Court of Adams county.
Action of covenant by appellee against appellant and others.
The nature of the case is sufficiently stated by the court.
Skinner & Marsh, for appellant.
Browning & Bushnell, for appellee.
On the 26th day of March, 1857, James Brown, James R. W. Hinchman and John S. Loomis conveyed two lots of land to Anton J. Lubbe by deed containing a general covenant of warranty. On the same day Lubbe conveyed the premises, in fee, to Newton Flagg in trust to secure the payment of Lubbe's two promissory notes for $1,076, payable to Brown, Hinchman and Loomis, with a power of sale in default of payment. Under this power of sale, Flagg, on the 23d of March, 1859, sold and conveyed the premises to James Brown; who, on the 28th of the same month, conveyed the same by quitclaim deed to Anton J. Lubbe; who, on the 30th of April, 1862, conveyed the same by quitclaim deed to the appellee. On the 13th of October, 1856, Hinchman and Loomis executed a mortgage of the premises to Calvin H. Chadsey; and the appellee alleges that he has been evicted by the foreclosure of this mortgage. The suit is brought by the appellee against Brown, Hinchman and Loomis for the recovery of damages, sustained by an alleged breach of their covenant of warranty occasioned by the eviction. Hinchman and Loomis were not served with process. The covenant of warranty passed with the seizin of the land, from Lubbe to Flagg, and from him to James Brown. The James Brown to whom Flagg conveyed will be presumed to be the person who by that name executed the conveyance to Lubbe. 2 Phil. Ev. 508; Sewell v. Evans, 4 Q. B. 626; Roden v. Hyde, Id. 629; Simpson v. Dinsmore, 9 M. & W. 47. The appellant having, before any breach of his covenant, become reinvested with the seizin which he conveyed and which he covenanted to warrant and defend, his obligation in this regard was extinguished. The estate granted by him ceased upon the reconveyance, and the covenant attendant upon the estate, and only co-extensive with that, was extinguished when the estate ceased. The law does not allow persons to become assignees of their own obligations, and when an obligation is transferred to an obligor by an instrument in the form of an assignment, instead of taking effect as such it operates as an extinction of the obligor's liability. The liability of a covenantor upon the covenant of warranty now in use is, in many respects, the same that it was under the old charter of warranty, out of which the nature and incidents of the present covenant are derived. The...
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