Eli v. Trent

• Decision Date: 26 May 1922
• Citation: 241 S.W. 324,195 Ky. 26
• Parties: ELI v. TRENT ET AL.
• Court: Kentucky Court of Appeals

241 S.W. 324

195 Ky. 26

ELI v. TRENT ET AL.

Court of Appeals of Kentucky.

May 26, 1922

Appeal from Circuit Court, Hopkins County.

Action by C.J. Trent and others against J. D. Eli and another, to recover for breach of warranty. Judgment for the plaintiffs against both defendants, and the named defendant moves for allowance of an appeal. Motion for appeal granted, and judgment reversed, with directions to dismiss the petition as to appellant.

J. A Jonson and Letcher R. Fox, both of Madisonville, for appellant.

Gordon Gordon & Moore and J. T. Gooch, all of Madisonville, for appellees.

MOORMAN J.

This proceeding is before this court on motion to allow an appeal from a judgment of the Hopkins circuit court for $300 damages.

In 1917 appellant conveyed about 40 acres of land, by deed of general warranty, to V. H. Mason, his codefendant in the court below. Two years later Mason made a like conveyance of the land to the appellees. Appellant did not own the mineral rights in and under the land conveyed to Mason, and consequently no title to such rights passed from him to Mason or from Mason to the appellees. In December, 1919, appellees filed this suit to recover damages in the sum of $790 for breach of the warranty in their deed. The result of that suit was a judgment in their favor for $300 against both Mason and appellant, from which the latter seeks an appeal to this court.

The only question presented is whether or not the appellees can maintain an action against their remote vendor for a breach of his warranty. The included subjects of appellant's warranty cannot be questioned, for it is well settled by decisions of this court that a general warranty includes all common-law covenants under section 493 of the Kentucky Statutes. Butt v. Riffe, 78 Ky. 352; Smith v Jones, 97 Ky. 670, 31 S.W. 475, 17 Ky. Law. Rep. 456; Waggener v. Howsley's Adm'r, 164 Ky. 113 175 S.W. 4. Accordingly, appellant's deed embraces warranties of title, seisin, etc., and similarly, the deed from Mason to appellees contains like complete covenants. It is argued for appellees that the warranty in appellant's deed is a covenant running with the land, for the breach of which, even though it occurred previously to the conveyance to appellees, they can maintain an action for damages against the original convenantor.

The exact question as it is here presented has never been decided by this court. The general rule is that an unbroken covenant passes to subsequent transferees with the title, but when broken it automatically becomes a chose in action, and does not pass with the transfer of title, but only by express assignment. 15 C.J. 1259. Thus it is held in a great majority of the states that a remote grantee cannot maintain an action for the breach of a real covenant that occurred before the grant to him, and that the right of action in that event is personal to him in whose time the covenant is broken, and who, unless he assigns it, is the only person who can bring the suit. 15 C.J. 1258; 7 R. C. L. 1193.

The English rule is different; it is that a covenant is a continuing obligation for the breach of which a subsequent grantee may maintain an action against the original warrantor, even though the breach occurred previously to the conveyance to the complaining grantee. But, as we have stated, the weight of authority in this country is to the contrary, and, in our opinion, it rests upon sound principles. An extended discussion of the subject is found in the note to the New York case of Geiszler v. De Graaf, 166 N.Y. 339, 59 N.E. 993, 82 Am. St. Rep. 659. Under the preponderating doctrine announced in the cases cited in that note it would seem clear that if the covenant relied on by appellees was broken after they purchased the property, the right of action as against the original covenantor (appellant) is maintainable, but if the breach occurred previously to the sale of the land to them, although Mason sold under a general warranty deed, they cannot maintain an action for the breach of appellant's warranty, unless Mason assigned his cause of action arising out of the breach to them. In other words, if the breach occurred before Mason sold the land, the right of action on appellant's warranty vested in Mason, and did not pass to appellees under the second deed.

In this jurisdiction it is the established rule that one holding possession of the...