Ferguson v. Dent

• Decision Date: 31 July 1844
• Citation: 8 Mo. 667
• Parties: FERGUSON v. DENT.
• Court: Missouri Supreme Court

8 Mo. 667

FERGUSON

v.DENT.

Supreme Court of Missouri.

July Term, 1844.

ERROR TO ST. LOUIS CIRCUIT COURT.

GEYER and DAYTON, for Plaintiff. 1. If it be said in a lease, that the lessee shall repair, &c., an action will be for not repairing. 3 Comyn's Dig. 237. 2. If a man assign an apprentice, though not assignable in law, it amounts to a covenant that the apprentice shall serve the assignee. 1 Ld. Raymond, 683. 3. If land be conveyed, as bounded on the way on one side, this is not merely a description, but a covenant, that there is such a way. Parker et al. v. Smith et al. 17 Mass. 413. 4. The words being, “sound wind and limb, and free from disease,” were held to amount to an express covenant. Cramer v. Bradshaw, 10 Johns. R. 484. 5. It is no answer to say that the situation of the land might have been known to the plaintiff. It would not avail the covenantor, if the covenantee had actual knowledge. 8 Mass. R. 146; 9 ibid. 495.

SPALDING and TIFFANY, for Defendant.

I. The words in the deed, assumed in the first breach to be a covenant, that the eighty acres lay west and adjacent to the other tract, were mere matter of description, and no covenant. 2 Johns. R. 37. If a deed convey a lot containing 600 acres, with covenant of seizin, does not cover the quantity, and is not broken if there be less than 600 acres. 8 Bing. R. 48; 21 Eng. Com. L. R. 217. That words of description are not warrantees. This was of a colt: the court remarks, that, whatever a party warrants, he must make good; but if he sells by description, and a latent defect is discovered, the buyer must go farther and prove a scienter, in order to recover. Greenleaf's Ev. 32. Estoppel does not apply to that which is mere description in deed, &c., such as quantity, whether arable or meadow, the number of tons, &c., as those are supposed merely incidental to the principal thing, and not “to have received the deliberate attention of the parties.” See, also, the note at same page, showing, that the reason is, that the attention of the parties has been but slightly directed to those matters. The same reason exists why words of description should not be construed into a covenant, that forbids their operating by way of an estoppel, viz: that the attention of the parties is but slightly directed to those matters.

II. Those words were not intended by the parties as a covenant: 1st. Because the statements are as mere matter of description, and not in the formal mode, usual in deeds, where covenants are intended. 2nd. Because there is a covenant of general warranty in the deed, thus indicating, that the parties knew how to frame covenants, when they intended to have them. 3rd. To hold these words to be a covenant, is unprecedented and dangerous.

1. Though deeds of land are among the most common transactions, and suits on the covenants in them frequent, yet no cases of suits, or similar claims of description are produced, except a single one in this court.

2. If the suit can lie, then a suit can be sustained on every variance of description in a deed, from the fact: and thus conveyances will be converted into traps for the unwary. Nothing is more common than partial misdescriptions in deeds; thus, those portions of deeds on which little attention is usually bestowed, are converted into warranties. Hitherto they have been considered as mere description, in good faith, by the grantor of the land sold, and, if not fraudulently misdescribed, that he was not answerable. If, knowingly, he misrepresents, or misdescribes, he is liable for any injury done, as has been decided in Pasley v. Freeman, 3 Term R. 51; a leading case, which has been followed in England and America ever since. Chandlor v. Lopes, 2 Croke, James II.; and the note to these cases in Smith's Leading Cases.

3. The only case I have seen countenancing the doctrine contended for, is in 3 Mo. R. 578; Campbell and Moore v. Russell. This case, as reported, discloses nothing on this subject. In vain will the reader seek for the remarkable doctrine, that mere words of description of the land conveyed are covenants, are warranties, on which the grantor is liable, if there be a mistake. That case differs also from the present, as it appears from the deed itself, that the main motive of the purchase there was to secure to the grantee the very farm which he occupied, and thus that the matter of description was a matter of substance, and not a mere incidental affair.

NAPTON, J.

This was an action of covenant, brought by the plaintiff in error upon a deed conveying to him certain tracts of land. By the deed from Dent and wife to Ferguson, the grantors, “granted, sold, aliened, enfeoffed and confirmed” to him a tract of land, lying in the State of Missouri, containing 125.12 acres, being the southeast fractional quarter of section No. 13, township 44, range 10 west, represented in said deed as having been entered by P. Dillon.

The deed further conveyed “another piece of land, being the unsold residue of a larger tract of land, of 160 acres, the said unsold residue hereby conveyed containing eighty acres; said larger tract being a location made by Dillon, under a New Madrid certificate, number 282, conveyed to him by Prior Quarles, who acquired it of Robert Simpson, to whom it was conveyed by the heirs and representatives of Eustache Peltier, the said eighty acres being an undivided interest, and lying west and adjacent to the tract of land first above mentioned.” In conclusion, the grantors covenanted with the said Ferguson, his heirs and assigns, that he would forever warrant and defend the tracts of land above granted, and every parcel thereof unto him, the said Ferguson, his heirs and assigns, against all persons lawfully claiming the same, and against all titles, and liens, and incumbrances whatsoever.

The declaration alleged, that by said deed, Dent covenanted with the plaintiff, among other things, “that the said eighty acres of land, last above-mentioned and described, lay west and adjacent to the tract of land first in said deed mentioned; and that the said Dent and his wife were, at the time of the execution of said deed, seized of an indefeasible estate in fee simple in the real estate by said deed granted;” and assigned for breaches--first, “that the said eighty acres of land, last in said indenture described, did not lie west and adjacent to said tract of land first in said indenture mentioned, but lay in another and different direction from said tract, and in another and different place;” second, that Dent and wife were not seized of an estate in fee at the time of making the said deed in said lands, &c. The defendant set out the deed, on oyer, and demurred generally, and the demurrer was sustained by the court.

The second breach assigned is conceded to be bad, as the words “granted, sold, aliened, enfeoffed and confirmed,” do not imply a covenant of seizin, and the words from which, by our statute, such covenants are implied, are not used in the deed. The only question is, whether the words of the grant, “the said eighty acres, being an undivided interest, and lying west and adjacent to the tract of land first above-mentioned,” amount to an express or implied covenant, that the said eighty acres did lie west and adjacent to the said tract first conveyed.

This is a question upon which, undoubtedly, great regard should be paid to judicial precedent, if there be a continuous and decisive series of adjudications on either side of the proposition. It is emphatically important, that the construction of conveyances should be uniform, and it is of more consequence that the meaning of words and phrases (which, in themselves, fluctuate with the innovations incident to language), should be consistent and fixed, than that their first interpretation should accord with reason, or conform to their ordinary acceptation.

It is plain, that the clause in this deed, which has been declared upon as a covenant, is not an implied covenant. An implied covenant is an agreement raised by implication of law, between two or more persons, from certain technical expressions used in the deed. Selwyn's N. P., title Covenant. Thus the word “do” or “give,” in a feoffment, the words “give and demise,” in a lease, and the word “enfeoff,” in a lease for years, have all been, by the uniform determination of the courts, held to imply certain covenants. So, the words, “grant, bargain and sell,” by express provision of our statute, imply certain covenants of seizin, freedom from incumbrance, &c. But neither by common law or statute, do the words, “being or lying,” imply any covenant that the fact is as it is represented to be

The question is then narrowed down to the single point: Is this an express covenant? It is true, that no precise form of words is necessary to constitute an express covenant; any form of words, or mode of expression, in a deed, which clearly evinces an agreement, will amount to a covenant. Selwyn's N. P., 343. But it is well settled, that expressions in an instrument, which are mere description do not constitute a covenant. No authority has been produced, and none, I apprehend, can be produced, in which any court has held mere words of description to constitute a covenant.

It must be admitted, that, in determining whether the clauses of a written instrument are matters of description only, or amount to a covenant, some of our State courts have gone very far in their construction of bills of sale of personal chattels, to confound all discrimination between matters of description and of agreement. The case of Cramer v. Bradshaw, 10 Johns. R. 484, cited by the counsel for the plaintiff in error, is an instance of this kind. The defendant bargained and sold to the plaintiff, “a negro woman slave, named Sarah, aged about thirty years, being of sound wind and limb, and free from all disease,” and by the me instrument covenanted to warrant and defend the slave, so sold to the plaintiff, against the defendant, and all others. The...