Fishel.,v,browning Et Al.

• Decision Date: 17 September 1907
• Citation: 58 S.E. 759,145 N. C. 71
• Parties: FISHEL. v BROWNING et al.
• Court: North Carolina Supreme Court

58 S.E. 759

(145 N. C. 71)

FISHEL.vBROWNING et al.

Supreme Court of North Carolina.

Sept. 17, 1907.

1. Dower—Rights op Widow Pending Assignment?—Possession of Lands.

Until allotment of dower, the widow has no right to retain possession of her deceased husband's lands against the heir or those claiming under him.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 17, Dower, § 198.]

2. Covenants—Seisin—Breach.

Where an intestate's land was sold by his administrator to pay debts without any assignment of dower and the purchaser thereafter conveyed the land to plaintiff, the possession of the widow and heirs of the intestate was not a breach of the purchaser's covenant of seisin which is applicable to title and not to possession.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Covenants, §§ 104-109.]

3. Same — Covenant of Warranty — Quiet Enjoyment.

A covenant of warranty in a deed is subject to the same construction as a covenant for quiet enjoyment, and is broken only by an eviction or disturbance of possession by a paramount title.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Covenants, §§ 157-108.]

4. Same — Warranty Against All Claims and Demands.

A covenant of warranty of quiet enjoyment in a deed against the claims of any and all persons whatsoever was confined to "all lawful claims and demands, " and did not constitute a contract to indemnify plaintiff against claims of trespassers.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Covenants, § 132.]

5. Same—Incumbrances.

Where prior to an assignment of dower intestate's land was sold by his administrator to pay debts, the widow's outstanding inchoate dower right constituted a breach of covenant against incumbrances contained in a purchaser's deed of.the land so purchased to plaintiff.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Covenants, §§ 111-129.]

6. Same—Measure of Damages.

In an action for breach of covenant against incumbrances consisting of a widow's unassigned dower right, plaintiff, not having suffered any actual injury nor paid anything to remove incumbrances, could only recover nominal damages.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Covenants, § 239.]

7. Same.

Certain of intestate's land having been sold by his administrator to pay debts prior to an assignment of dower to intestate's widow, the purchaser conveyed the land to plaintiff with a covenant against incumbrances. Plaintiff was denied possession by intestate's widow and heirs, but recovered possession against them in an action in which it was held that they were trespassers. Held, that plaintiff could not recover on his covenant against incumbrances the amount paid for counsel fees in his suit to recover possession and interest on the purchase money during the time he was out of possession.

Appeal from Superior Court, Warren County; Lyon, Judge.

Action by D. A. Fishel against E. B. Browning and another. From a judgment for defendants, plaintiff appeals. Affirmed.

The plaintiff alleges: That the feme defendant, being the owner of the land described in the complaint, with the written assent of her husband, the male defendant, for a full and valuable consideration, conveyed said land to him by deed bearing date July 6, 1904. The said deed contains the following covenants. "And the said Howard Browning and wife covenant to and with the said D. A. Fishel, his heirs and assigns, that they are seized of said premises in fee, and have right to convey the same in fee simple, as it was conveyed to them; that the same are free from all incumbrances and that they will warrant and defend the said title to the same against the claims of all persons whatsoever." That upon the delivery of said deed to them, and in accordance with their contract with defendants, plaintiff undertook to enter upon the said land, when he was "met by the widow and heirs of one Louis Baker, who were in possession and who forbade his entrance and disputed his right and title to the same, which fact was at once reported to defendants." The feme defendant acquired title to said land by virtue of a sale, and deed pursuant thereto made by the administrator of Louis Baker, deceased, for the purpose of making assets to pay debts. The heirs of said Baker resisted the recovery by plaintiff of said land in an action brought by him, and by independent proceeding, as well as by motion in the original cause, alleging that no process was served upon them. The widow resisted recovery, alleging that she was entitled to have dower allotted in said land. That the litigation for the recovery of the land continued two years, plaintiff being finally successful That plaintiff expended on account of said litigation $287 in cost and counsel fees. That the interest on the purchase money during the said litigation was $102, no part of which defendants have paid, although requested to do so. Plaintiff further alleges that the bargain, contract, and covenant of the defendant E. P. Browning set forth in said deed, to sell and deliver said lands to him and to warrant and defend the title thereto, was broken by her failure to deliver possession thereof to plaintiff; that thereby plaintiff suffered loss, and was endamaged and forced and compelled to incur the expense and outlay above set out; and that the defendant E. P. Browning is liable to him therefore as the measure of his damages by reason of the breach of the said contract and covenant in failing to deliver said lands to plaintiff and in failing to defend the title. He demands judgment for the sum of $389 and interest. Defendants demurred to the complaint, and assigned as grounds therefor, first, that said action is for alleged damages due by reason of a false covenant of warranty of title, and the plaintiff does not allege in said complaint, as a breach of contract, an ouster or eviction by paramount legal title; second, that the complaint, upon its face, discloses that the defendant's wife, E. P. Browning, had a good and sufficient title to the property, and that the plaintiff got such title in fee by the deed of the defendant, and that the plaintiff recovered possession of the property under their said deed; third, that the complaint shows that the plaintiff was entitled under his deed from the defendant to the possession of the property, the interest of the tenant in dower (the dower not having been allotted) being subordinate to that of the heirs; fourth, that the complaint shows that the dower had not been allotted, and the tenant in dower therefore had no right to hold possession against the title of the purchaser, the plaintiff. From a judgment sustaining the demurrer plaintiff appealed.

T. T. Hicks and Tasker Polk, for appellant.

Walter A. Montgomery and John H. Kerr, for appellees.

CONNOR, J. (after stating the case as above). The deed set forth in the complaint contains several covenants: (1) The covenant of seisin and right to convey. (2) Covenant against incumbrances. (3) General warranty, which is, under our decisions, a covenant for quiet enjoyment. It is not clear that the plaintiff intends to allege a breach of the covenant of seisin. Giving, however, the language of the complaint a liberal construction, for the purpose of discovering such allegation, we are of the opinion that, for the purposes of this appeal, the feme defendant was seised of the land, that she had title thereto with right of entry subject to the incumbrance of the right of dower in the widow of Louis Baker. It is conceded that, with this exception, she had the title of Baker. Whatever controversy the heirs made in regard to the validity of the proceeding by the administrator and the sale made thereunder is conceded to have been without foundation. It is further conceded that the widow was entitled to have her dower allotted in the land, and that no allotment was made. It has always been held by this court that until allotment the widow has no right to retain possession of her deceased husband's lands against the heir or those claiming under him. In Spencer v. Weston's Heirs, 18 N. C. 213, Daniel, J., said: "The widow has no right of dower until it has been assigned to her. * * * It is not until her dower has been duly assigned that a widow acquires a vested estate for life, which will entitle her to maintain ejectment. On recovering at law, the sheriff delivers the demandant possession of her dower by metes and bounds." Webb v. Boyle, 63 N. C. 271. In State v. Thompson, 130 N. C. 680, 41 S. E. 486, defendant was indicted for forcible entry and detainer. It appearing that the prosecutrix was in possession, after the death of her husband, no dower having been assigned, Furehes, C. J., said: "She was not the owner of the land from her own evidence, which tends to show, and we will assume did show, that the land she lived on belonged to her husband before his death and descended to his heirs, as no will is alleged or shown. She was entitled to dower, but this land had not been assigned or allotted to her. And the fact that she was his widow and entitled to dower gave her no right to any part of the land." Whether in this state, in the absence of any statute, she is entitled, under chapter 7, Magna Charta, to her quarantine, is not presented on this record, for the same reason assigned in Spencer v. Weston's Heirs, supra, that it does not appear that the mansion house was situate on the land in controversy. 10 Am. & Eng. Enc. 148.' We are of the opinion, therefore, that the possession of the heirs and widow of Baker was not a breach of the covenant of seisin, or "the right to convey in fee simple as the same was conveyed to them." The covenant of seisin refers to the title, and not the possession. Rawle on Cov. 60, 61.

Passing, for the present, the next covenant, we find in the deed the usual covenant of warranty, which, as said by Taylor, C. J., in Herrin v. McEntyre, 8 N. C. 410, is subject to the same construction as a covenant for quiet enjoyment. This is common...