Crisfield v. Storr

• Decision Date: 22 May 1872
• Parties: ARTHUR CRISFIELD, HENRY PAGE, and others, v. WILLIAM W. STORR and JOHN H. STORR.
• Court: Maryland Court of Appeals

36 Md. 129

ARTHUR CRISFIELD, HENRY PAGE, and others, v. WILLIAM W. STORR and JOHN H. STORR.

Court of Appeals of Maryland

May 22, 1872

APPEAL from the Circuit Court for Dorchester County.

The case is stated in the opinion of the Court.

Exception: The plaintiffs offered the two following prayers:

1. That if the jury believe from the evidence that Arthur Crisfield Henry Page, Frances Dyer and Elizabeth O. Jewett in the declaration mentioned, are the heirs of Henry Page, deceased mentioned therein, and that Isaac W. Jewett is the husband of the said Elizabeth O. Jewett, and that the said Henry Page deceased, in his lifetime executed and delivered the deed to Leah S. Howard offered in evidence to the jury, and that the said Leah S. Howard afterwards executed and delivered the deed to Thomas Storr offered in evidence to the jury, and that the said Thomas Storr afterwards departed this life having first duly made his last will and testament offered in evidence, and that the lands mentioned in the deed aforesaid, and in the first and second items of the said will, are the same, and that the plaintiffs in this action are the same persons who are mentioned in the said items of said will as "John" and "William," and that afterwards, to wit, on the 7th day of May, A. D., 1868, a certain William Eugene Sulivane Bradshaw recovered the judgment in ejectment in this Court, for one undivided half of the lands aforesaid, in the ejectment suit against the plaintiffs in this action, the record of proceedings in which was offered in evidence to the jury, by virtue of an elder and better title than that of said Page, on whose covenant this suit is brought, and that in pursuance of said judgment the plaintiffs yielded possession of the land recovered in said judgment, then they must find a verdict for the plaintiffs in this action.

2. That if the jury find the facts set forth in the plaintiffs' first prayer, and find their verdict for the plaintiffs, the measure of damages should be one-half the consideration mentioned in the deed from Henry Page and wife to Leah S. Howard, with interest upon the same from the time the plaintiffs were evicted by William Eugene Sulivane Bradshaw, as stated in the first prayer, down to the present time, together with the legal costs in the said ejectment suit, and also such sum in addition as may have been paid by the plaintiffs in this action, by way of fee to their counsel in said ejectment suit, if they believe from the evidence that such fee was reasonable.

The defendants offered the following prayers:

1. That if, from the evidence in the cause, the jury shall believe that Thomas Watson had title to the land in the declaration mentioned, and conveyed one moiety thereof to Mary Watson, by his deed offered in evidence, and died leaving Sally Bradshaw his sister and only heir-at-law, to whom the remaining half part of the land descended upon the death of the said Thomas; and shall further find, that Mary Watson made and executed her will offered in evidence, and died, leaving the said Sally Bradshaw, wife of Joseph Bradshaw, her only child and heir-at-law, and that Joseph Bradshaw and the said Sally, his wife, made and executed the deed for the said premises from them to Henry Page offered in evidence, and that the said Henry Page, in virtue of the said deed, entered into possession of the said premises and was seised thereof, and being so seised and possessed thereof, conveyed the same to Leah S. Howard, by deed from himself and wife to the said Leah, offered in evidence, their verdict must be for the defendants, although they may believe that the said Sally Bradshaw, after the execution of her said deed to the said Henry Page, gave birth to a child which lived to cry.

2. That if the jury shall find that Sally Bradshaw was entitled to the premises in the declaration mentioned, as stated in the first prayer, and she, with her husband, conveyed the same to Henry Page, by their deed of the 24th of May, 1842, offered in evidence, who entered into possession and was seised thereof before the birth of the said Wm. E. S. Bradshaw, and that the said Page, being so seised of the said premises, conveyed the same to Leah S. Howard by his deed to her offered in evidence, then their verdict must be for the defendants, although they should find the judgment and eviction of the plaintiffs offered in evidence.

3. If the verdict should be for the plaintiffs, the proper measure of damages are:

First. The consideration paid by the plaintiffs for the premises recovered, with interest from the date of eviction.

Second. Reasonable counsel fees actually paid for the defence of said suit, with interest as stated above.

Third. Costs of the said suit, taxed by the plaintiffs, before the bringing of this suit, with interest from the time of payment.

4. That if the jury believe from the evidence, that after the trial and judgment in the case, the record and docket entries of which have been offered in evidence by the plaintiffs, (the case of Bradshaw vs. Storr,) an arrangement was entered into between the plaintiffs, or their counsel authorized to act on their behalf, and the said Wm. Eugene Sulivane Bradshaw, or his counsel, similarly authorized, by which it was agreed between them that the plaintiffs should abandon their appeal in said case, and give up to said Bradshaw the land in the proceedings in said cause mentioned, and that said Bradshaw should relinquish all claim he might have against them for the rents and profits of said land, and that in pursuance of said mutual agreement the plaintiffs abandoned their said appeal, and delivered the possession of the said land to the said Bradshaw, and the said Bradshaw relinquished his said claim for rents and profits, then they must find a verdict for the defendants.

The Court (FRANKLIN and IRVING, J.) granted the prayers of the plaintiffs and rejected those of the defendants. To this action of the Court the defendants excepted, and the verdict and judgment being against them, they appealed.

The cause was argued before BARTOL, C.J., GRASON, MILLER, ALVEY and ROBINSON, J.

Wm. Shepard Bryan and J. W. Crisfield, for the appellants.

The declaration in this case is fatally defective:

1st. For variance. In the first count it is charged that Thomas Storr devised "the hereinbefore described premises to the plaintiffs," which is the devise of an estate in common; whereas, by the will of Storr, exhibited on oyer, estates are devised to them in severalty.

In the second count the covenant sued on is set out as the covenant of Henry Page alone, and his heirs; by the deed and covenant exhibited on oyer, it is the joint covenant of Henry Page and Charlotte Page, his wife, and their heirs jointly.

2d. Because the parties sued are not the parties liable, if in fact there has been any breach of the covenant. The parties sued are the heirs of Henry Page; the parties covenanting are "Henry Page and Charlotte, his wife, for themselves and their heirs," and it is not averred, and is not the fact, that Page survived his wife. The covenant is joint, and his survivorship will not be intended, and unless he did survive, his heirs are totally discharged. Bacon's Abr., Obligation D, 4.

And if the covenant as to Mrs. Page be void, by reason of her coverture, it will not change the covenants as to Page; it will then stand, Henry Page covenants for himself, his wife and their heirs, and hence it follows that, as heir, no one is bound who does answer the description of "their heirs," that is, the joint heirs of the two. When the obligation exists only by virtue of the covenant, its extent can be measured only by the words in which it is conceived. Platt on Covenants, 121.

The heir is liable on the covenantor's obligation only because he is named, and has assets by descent. 2 Black. Com., 243; Platt on Covenants, 305.

Only those who could take assets by descent are liable, and such only could be the children or descendants of the covenantors. The declaration, failing to aver that the persons sued are the persons described and liable by the express words of the covenant, is wholly insufficient and must fail.

3d. Because the breach assigned is not within the terms of the covenant. The defendants are sued as the "heirs of Henry Page," and the declaration, after setting out the covenant, and the right of the plaintiffs, proceeds "but the plaintiffs in fact say that the defendants have not warranted the said premises to the plaintiffs, as by the said covenant of the said Page, they, his heirs, were bound to do, but on the contrary," &c. and after setting out Bradshaw's recovery and their eviction, concludes, "and so the plaintiffs say that the said defendants have not kept the said covenant of the said Henry Page, but have broken the same," &c. If the covenant be void as to Mrs. Page, by reason of her coverture, as it is conceded to be, that fact does not alter it as respects her husband. Her name and her heirs still remain parts of the instrument; and as to Page, it must be construed precisely as it would be if her liability existed. His contract then was, that he, his wife and their heirs shall warrant and defend. He covenants for himself and his heirs, that he and certain other persons, who are certainly described, shall do a certain thing which might be performed by any one of them. If it is done by any of the said persons, his covenant is kept, and it is not broken till all, by whom it rightfully might be done, have had notice and have refused or failed to keep it. The breach assigned is that the defendants, who are the heirs of Henry Page, have not warranted and defended, non constat but that others, who are equally within the terms of the covenant, have. The declaration then in this...