Bull v. Beiseker
| Decision Date | 23 October 1907 |
| Citation | 113 N.W. 870,16 N.D. 290 |
| Court | North Dakota Supreme Court |
Action by Emerson K. Bull against Clara A. Beiseker and others. From an order sustaining a demurrer to the complaint, plaintiff appeals.
Affirmed.
J. W Bull and Newton & Dullam, for appellant.
Publication of foreclosure notice for less than 42 days is void. Finlayson v. Peterson, 5 N.D. 587, 67 N.W. 953; Dever v. Cornwall, 10 N.D. 123, 86 N.W. 227.
Whether the covenant runs with land depends upon privity of contract not upon the character of the title passed by the conveyance. Allan v. Kennedy, 91 Mo. 330; Kimbal v Bryant, 25 Minn. 496; Schofield v. Iowa Homestead Co., 32 Iowa 318.
R. A Palmeter and Turner & Wright, and Robert G. Morrison, for respondents.
For title to run with the land, some interest in the property must be passed. Rev. Codes 1905, section 5229.
Covenants run with the land but damages from broken covenants do not. 8 Am. & Eng. Enc. Law. (2d Ed.) 156; Parsons v. Council Bluffs, 45 Iowa 652; Stodgill v. Chicago, B. & Q. Ry., 5 N.W. 495; 1 Smith's Leading Cases (8th Ed.) 205.
Constructive eviction affords same remedies as actual. McInnis v. Lyman, 22 N.W. 405; Michal v. Alexander, 28 Wis. 118; McLennan v. Prentice, 45 N.W. 943; Wallace v. Pereles, 85 N.W. 371; Dahl v. Stakke, 12 N.D. 325, 96 N.W. 353.
Covenant of a stranger to title does not run with land. 1 Jones on Real Property, section 942; 2 Wash. R. Pr. (6th Ed.) section 1203; Mygatt v. Coe, 46 N.E. 949; 11 Cyc. 1097, 1098, 1099, 1100; 8 Am. & Eng. Enc. Law (2d Ed.) 151; 2 Mod. Law R. Property, section 401; Hubbard v. Norton, 10 Conn. 433; Mitchell v. Warner, 5 Conn. 503; Davis v. Lyman, 6 Conn. 255; Ballard v. Child, 34 Me. 355; Chapman v. Kimball, 7 Neb. 399; Davidson v. Cox, 10 Neb. 150; Kennedy v. Norton, 10 Heisk. 384; Galliher v. Galliher, 10 Lea, 23; Moore v. Merrill, 17 N.H. 75, 43 Am. Dec. 593; Peters v. Bowman, 98 U.S. 56.
Grantee cannot sue a remote grantor for breach of covenant occurring in latter's time. 1 Smith Leading Cases (9th Ed.) 234; Mygatt v. Coe, supra; Bestwood v. McGwin, 29 So. 399; Allen, Admr. v. Greene, 19 Ala. 40; Mitchell v. Warner, 5 Conn. 497; Whitney v. Dinsmore, 60 Mass. 124; Gan v. Sandford, 12 N.J.L. 2611; Keegan v. O'Callaghan, 35 App. Ct. Ill. 143; Indianapolis Water Co. v. Nulte, 126 Ind. 373; Pyle v. Gross, 92 Md. 132; Barklay v. Steers et al., 47 La.Ann. 952; Hunt v. Curtis, 19 Pick. 459; Ladd v. Noyes, 137 Mass. 151; Smith v. Richards, 135 Mass. 79; Sheldon v. Codman, 57 Mass. 318; Prov. Life & Trust Co. v. Seidel, 147 Pa. 232; Hurd v. Curtis, 19 Pick. 459; Bronson v. Coffin, 108 Mass. 181; Wheeler v. Schad, 7 Nev. 204; Chapman v. Kimball, 7 Neb. 399; Davidson v. Cox, 10 Neb. 153; Real et al. v. Hollister, 29 N.W. 189; Mygatt v. Coe, supra; Bowne v. Wolcott, 1 N.D. 497, 48 N.W. 336; N. P. Ry. Co. v. McClure et al., 9 N.D. 73, 81 N.W. 52; Prov. L. & S. Co. v. Fiss, 147 Pa. State, 240; Pigeon River Lumber & I. Co. v. Ninus, 48 S.W. 391; McConaughey v. Bennett, executors, 40 S.E. 541; Beardsley v. Knight, 4 Vt. 471; Devore v. Sunderland, 17 Ohio 52; Martin v. Gordon, 24 Ga. 533; Burtners v. Karan, 23 Grat. 42; McInnis v. Lyman, 22 N.W. 405; McLennan v. Prentice, 45 N.W. 943; Wallace v. Pereles, 85 N.W. 371.
Plaintiff, an assignee of a remote grantee in a deed purporting to convey certain real property, brought this action in the district court of Wells county to recover damages against defendants, who are remote grantors, for the breach of certain covenants contained in the latters' deed to their immediate grantee, one Charles A. Johnson. The complaint alleges that at the date such deed was executed and delivered by defendants to the said Johnson they had no right, title or interest in the real property therein described, nor had they the possession thereof. The complaint then alleges the execution and delivery of a deed of such premises by the said Johnson to one W. D. Washburn, who thereafter, in order to obtain title to said land, was obliged to and did purchase title to the same from the owner, one J. W. Bull, and as a portion of the consideration therefor the said Washburn, at the request of the said J. W. Bull, assigned to plaintiff herein the cause of action which he claimed to have against defendants for breach of the covenants in the latter's deed to Johnson, amounting to $ 1,120 and interest; such sum being the consideration paid by Johnson to defendants for such deed. Defendants demurred to the complaint upon the ground that it failed to allege facts sufficient to constitute a cause of action. The district court sustained the demurrer, and to reverse such order this appeal is prosecuted.
We think the demurrer was properly sustained. From the facts disclosed by the complaint, it is apparent that Washburn had no cause of action against defendants which he could assign to plaintiff. The action was brought and the complaint framed upon the mistaken theory that the covenants contained in defendants' deed to Johnson were covenants running with the land, and therefore passed to Washburn by the deed from Johnson to him. This probably would be true if any title or possession was transferred by such conveyances; but under the facts alleged in the complaint neither title nor possession, actual or constructive, passed under the deeds, and hence there was nothing for the covenants to run with. There was a constructive eviction of the grantee immediately upon the execution and delivery of the deed to Johnson, and a cause of action for breach of the covenants in such deed at once arose in his favor against the Beisekers to recover damages therefor, and the deed from Johnson to Washburn did not operate to assign to the latter such cause of action. While a few isolated cases may be found holding to the contrary, we think the correct rule, and the one supported by the overwhelming weight of authority, is to the effect that a cause of action for breach of a covenant in a deed under which neither title nor possession is transferred does not pass to the grantee of the covenantee by the mere execution and delivery of a deed from the latter to the former, as the covenants in such a deed do not run with the land.
It is true, as counsel for appellant say, that defendants had color of title at the time of executing the deed to Johnson; but such mere color of title was not accompanied by actual possession of the property, and did not draw to it even the constructive possession thereof, such constructive possession following the legal title. Therefore such mere naked color of title would not ripen into a title by lapse of time, as suggested by appellant. It would serve no useful purpose to review the many adjudicated cases upon this question, and we will content ourselves by calling attention to the following: Bowne v. Wolcott, 1 N.D. 497, 48 N.W. 426; N. P. Ry. Co. v. McClure, 9 N.D. 73, 81 N.W. 52, 47 L. R. A. 149; McInnis v. Lyman, 62 Wis. 191, 22 N.W. 405; Wallace v. Pereles, 109 Wis. 316, 85 N.W. 371, 53 L. R. A. 644, 83 Am. St. Rep. 898; Mygatt v. Coe, 152 N.Y. 457, 46 N.E. 949, 57 Am. St. Rep. 521; Ladd v. Noyes, 137 Mass. 151; Real et al. v. Hollister, 20 Neb. 112, 29 N.W. 189; Chapman v. Kimball, 7 Neb. 399; Davidson v. Cox, 10 Neb. 150, 4 N.W. 1035; 8 Am. & Eng. Enc. Law (2d Ed.) 149, 151; 11 Cyc. 1097-1100, and numerous cases cited; 1 Jones on Law of Real Prop., section 942; 2 Washburn, Real Prop. (6th Ed.) section 1203; note to 1 Smith's Lead. Cas. (8th Ed.) 205.
Section 5229 of our Revised Codes, referred to by appellant's counsel, in no manner changes the rule almost universally announced by the courts of this country as enunciated in the foregoing authorities. This section merely provides that certain covenants in grants of estates in real property pass with them, so as to bind the assigns of the covenantor and vest in the assigns of the covenantee in the same manner...
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