Dugger v. Oglesby
| Decision Date | 28 February 1878 |
| Citation | 3 Ill.App. 94,3 Bradw. 94 |
| Parties | VALINDA B. DUGGER ET AL.v.DANIEL OGLESBY. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Madison county; the Hon. WM. H. SNYDER, Judge, presiding.
Messrs. GILLESPIE & HAPPY, for appellants; contending that if a purchaser fails to protect himself against incumbrances by requiring a covenant, it is his own fault, cited Jackson v. Ewing, 17 Ind. 505.
That the claim of Pearce was not a title, nor even an incumbrance: Dobbins v. Brown, 2 Jones, 75; Rawle on Covenants, 232; Ellis v. Welch, 6 Mass. 249; Barley v. Miltenberger, 31 Penn. 37.
Where the covenantor himself does an act asserting title, it constitutes a breach of the covenant for quiet enjoyment: Beebe v. Swartwout, 3 Gilm. 163; Bostwick v. Williams, 36 Ill. 65; Sedgewick v. Hollenbrook, 7 Johns. 380; Brady v. Spurck, 27 Ill. 478; Moore v. Vail, 17 Ill. 185; Claycomb v. Munger, 51 Ill. 373.
Under covenants for quiet enjoyment and general warranty the assignment of breaches must be special by showing an older title: Marston v. Hobbs, 2 Mass. 437; Owen v. Thomas, 33 Ill. 320; Rawle on Covenants for Title, 200; Jones v. Warner, 81 Ill. 343.
The action for breach of covenant of warranty should be brought by him who owned the land when the breach took place: 2 Washburn on Real Property, 713.
The judgment should have been joint against all to the extent of assets descended: Vanmeter v. Love, 33 Ill. 260.
Because appellee might have had the special pleas or the special matter contained in the notice, stricken from the files, but did not do so, is no reason why evidence offered under such pleas or notice should be excluded: Gilmore v. Nowland, 26 Ill. 200; Burgwin v. Babcock, 11 Ill. 28; Hunt v. Weir, 29 Ill. 83.
A party is not estopped to show that no consideration in fact was paid for a deed: Kimball v. Walker, 30 Ill. 482.
Messrs. METCALF & BRADSHAW, for appellee; that Dugger was not an innocent purchaser for value of the property, cited Renfro et al. v. Pearce, 68 Ill. 126.
The heir is liable for the debt of his ancestor, to the extent of the property received from him: Ryan v. Jones, 15 Ill. 1.
An actual eviction is not necessary, but the covenantor or his assigns may yield to a paramount title: McConnell v. Downs, 48 Ill. 271; Harding v. Larkin et al. 41 Ill. 413; Claycomb v. Munger, 51 Ill. 373.
A certified copy of the record of the deed was admissible in evidence: Rev. Stat. 720; 1 Chitty's Pl. 374; Rogers v. Miller, 4 Scam. 333; Palmer v. Logan, 3 Scam. 56.
Notice of special matter and special pleas cannot both be filed with the general issue: Gilmore v. Nowland, 26 Ill. 200.
To recover on a covenant for quiet enjoyment, it is not necessary to aver an outstanding title; it is only necessary to show an eviction: Beebe v. Swartwout, 3 Gilm. 163; Furness v. Williams, 11 Ill. 229; Ohling v. Luitjens, 32 Ill. 23; Brady v. Spurck, 27 Ill. 478; 2 Johns. 395; 7 Johns. 258; 11 Johns. 122.
There is a difference between an eviction under covenant for quiet enjoyment, and one under that of warranty: Fowler v. Poling, 6 Barb. 165; 2 Washburn on Real Property, 665; 5 Kent. 571; 5 Johns. 121.
Appellee is estopped from disputing facts that have been judicially settled by the foreclosure decree, sale and deed: Sisk v. Woodruff, 15 Ill. 15; 27 Ill. 478; 33 Ill. 320.
As to proper parties plaintiff: 2 Washburn on Real Property, 662; 68 Ill. 125; Ryan v. Jones, 15 Ill. 1; Vanmeter's Heirs v. Love's Heirs, 33 Ill. 260.
Oglesby impleaded appellants in covenant. The declaration alleged that Edward C. Dugger, now deceased, with Valinda B. Dugger, his wife, on the 29th day of July, 1867, in consideration of $4,000, conveyed certain described lots in the town of Ashley, in Washington county, Illinois, to William Vance, and his heirs and assigns forever, and that said Dugger and wife, by the same deed covenanted to and with said Vance, his heirs and assigns, and for themselves, their heirs, executors and administrators, as set forth in said declaration. The declaration further averred that on the 16th of August, 1867, said Vance and his wife conveyed said lots to John Criley, and that said Criley and his wife, on the first day of January, 1869, in consideration of the sum of $3,500, conveyed said premises to the plaintiff. The breach assigned in said declaration is hereinafter specially referred to. The declaration further averred that on the 23d day of August, 1869, the said Edward C. Dugger departed this life, intestate, leaving as his heirs Valinda B., his widow, and Alfred P., John W., Millard, Ellen, Edward, Julia and Augustus Dugger, his children. Alfred J. Parkinson was appointed administrator of his estate. That there was real estate and personal property inherited from, and distributed to the said widow and heirs, from the said Edward C. Dugger, deceased, before the commencement of the suit, in the sum of twenty thousand dollars, and that Parkinson was the guardian of said minor children, Millard, Edward, Julia and Augustus. Plaintiff further averred a demand and refusal before suit, and the ad damnum was $5,000.
To this declaration the defendants below filed three pleas:
1. Non est factum.
2. Nul tiel record.
3. Performance; with which pleas a notice was filed:
1. That the title was in Dugger when he made the deed.
2. That when the order of the Circuit Court of Washington county was made, Dugger was dead and his heirs were not made parties, and that they did not have notice.
3. That there was no consideration paid by plaintiff to Criley.
4. That defendants have not inherited any property from Dugger.
5. That no demand was made as averred.
6. That Pearce had no title when the deed was made by Dugger.
Issues were formed upon these pleas, and no motion was interposed to strike out either the special pleas or the notice of special matter. Without objection the parties tried the cause upon the pleas and notice, and it is therefore unavailing for the appellee to now complain in his argument, even if cross-errors had been assigned. Hunt v. Weir, 29 Ill. 83.
By agreement the cause was tried in the Madison Circuit Court, by the judge, without a jury, and the following judgment was entered: Exceptions were taken, and the case is brought to this court by appeal.
On the trial of this cause, appellee introduced in evidence a power of attorney from Edward C. Dugger and wife to G. Wright, which authorized him to bargain, sell, grant, convey and confirm, the lots in question with covenants of warranty.
He also introduced in evidence a certified copy of a deed for said lots, from said Dugger and wife, to William Vance, he first orally, in court, under oath, laying the foundation required by statute, for the introduction of a certified copy. Said deed is signed as follows:
+-----------------------------------+
¦EDWARD C. DUGGER, ¦[SEAL.] ¦
+-----------------------------------¦
¦By G. Wright, his attorney in fact.¦
+-----------------------------------¦
¦HARRIET V. B. DUGGER, ¦[SEAL.] ¦
+-----------------------------------¦
¦By G. Wright, her attorney in fact.¦
+-----------------------------------+
And the acknowledgment is as follows:
+-------------------------+
¦State of Illinois, ¦)¦ ¦
+-------------------+-+---¦
¦ ¦)¦ss.¦
+-------------------+-+---¦
¦Washington County. ¦)¦ ¦
+-------------------------+
I, G. T. Hakes, notary public in the town of Richview, in the county and State aforesaid, do hereby certify that Edward C. Dugger, and Harriet V. B. Dugger, who are personally known to me as the same persons whose names are subscribed to the annexed deed, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument of writing as their free and voluntary act, for the uses and purposes therein set forth. And the said Harriet V. B. Dugger, wife of the said Edward C. Dugger, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also her rights and advantages under and by virtue of all the laws of the State, relating to the exemption of homesteads, without compulsion of her said husband, and that she does not wish to retract the same.
Given under my hand and official seal this twenty-ninth day of July, A. D. 1867.
+-------------------------------------+
¦[SEAL.]¦GEO. T. HAKES, Notary Public.¦
+-------------------------------------+
The consideration expressed in said deed is $4,000; and it is upon the covenants contained in this deed that the present suit is brought.
He also introduced in evidence a deed for said lots from William Vance to John Criley, and a deed from John Criley to himself. Both of these latter deeds were for the premises in question, and...
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