Burton v. Price

• Citation: 105 Fla. 544,141 So. 728
• Parties: BURTON v. PRICE.
• Decision Date: 21 May 1932
• Court: United States State Supreme Court of Florida

141 So. 728

105 Fla. 544

BURTON v. PRICE.

Florida Supreme Court, Division A.

May 21, 1932

Error to Circuit Court, Pasco County; O. L. Dayton, Judge.

Action by Fred G. Burton against A. Frank Price. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

COUNSEL W. Kenneth Barnes, of Dade City, for plaintiff in error.

Arthur L. Auvil, of Dade City, for defendant in error.

OPINION

BUFORD C.J.

In this case declaration was filed in two counts. The first count was a conventional declaration on breach of covenant of seizin. The second count was a conventional declaration on breach of covenant of warranty. Copy of the deed of conveyance in which the covenants were contained was attached to the declaration and made a part thereof.

There was a demurrer to the declaration which was sustained as to both counts. On demurred being sustained, plaintiff declined to amend his declaration, and judgment was entered in favor of defendant to which writ of error was sued out. The covenants in the deed of conveyance read as follows:

'And the said party of the first part does covenant with the said party of the second part that he is lawfully seized of the said premises, that they are free from all encumbrances and that he has good right and lawful authority to sell to same; and the said party of the first part does hereby fully warrant the title to said land, and will defend the same against the lawful claim of all persons whomsoever by, through and under him.'

The demurrer was properly sustained as to the second count of the declaration because the warranty contained in the deed of conveyance was a special warranty which could not be extended to a general covenant of warranty against all persons. See Davenport v. Lamb, 13 Wall. 418, 20 L.Ed. 655; Bell v. Twilight, 26 N.H. 401; Jackson ex dem Peek v. Peek, 4 Wend. (N. Y.) 300.

In this case the declaration shows that the incumbrance complained of was not held by one claiming the same by, through, or under the grantor in plaintiff's deed, but that such incumbrance was by reason of an outstanding adverse title existing at the time at which grantor acquired his title.

The demurrer as to the first count of the declaration should have been overruled. The covenant of a seizin contained in the deed is general and unqualified. It appears to be well established that a grantee who acquires no title by the deed of conveyance and who acquires no possession and no right of possession under such deed containing covenants of seizin may recover the purchase money paid, with interest thereon, in an action for breach of such covenant of seizin and that the breach occurs immediately upon the execution and delivery of the conveyance. See Resser v. Carney, 52 Minn. 397, 54 N.W. 89; Blanchard v. Ellis, 1 Gray (Mass.) 195, 61 Am. Dec. 417; Nichol v. Alexander, 28 Wis. 118; McInnis v. Lyman, 62 Wis. 191, 22 N.W. 405; Burton v. Reeds, 20 Ind. 87; Abbott v. Allen, 14 Johns. (N. Y.) 248; Mackintosh v. Stewart, 181 Ala. 328, 61 So. 956; Peters v. Bowman, 98 U.S. 56, 25 L.Ed. 91; Pollard v. Dwight, 4 Cranch, 421, 2 L.Ed. 666.

The covenant of seizin may be defined to be an assurance that the grantor has the very estate in quantity and quality which he purports to convey. Brandt v. Foster, 5 Iowa, 287; Real v....