Funk v. Voneida

• Decision Date: 17 May 1824
• Citation: 14 Am.Dec. 617,11 Serg. & Rawle 109
• Parties: FUNK v. VONEIDA ET AL., EXECUTORS of BECHTOLL.
• Court: Pennsylvania Supreme Court

11 Serg. & Rawle 109

14 Am.Dec. 617

FUNK v. VONEIDA ET AL., EXECUTORS of BECHTOLL.

Supreme Court of Pennsylvania.

May 17, 1824

IN ERROR.

The covenants arising upon the words, " grant, bargain and sell, " in a deed, are not inconsistent with nor restrained by an express covenant of special warranty.^[a]

Where the grantor, prior to the execution of the deed, had mortgaged the premises, it was held, that the grantee was entitled to recover, in an action upon those covenants, at least, nominal damages, notwithstanding the mortgage was not due at the commencement of the suit, and no actual damage was proved.

If the grantee, in his declaration, had assigned, specially, the consequential damages arising from the breach of the covenants, stating that the land was of less value by reason of the incumbrance; that he was prevented from selling it as advantageously as he might otherwise have done; and, that, in fact, it was sold by process of law, for so much less than the value of the mortgage, he would have been entitled to damages to the full value of the mortgage.^[b]

Quere?Whether the grantee, by calling on the grantor to remove the incumbrance, would not be entitled to recover the value of the mortgage, where there had been no sale, no eviction, and even before the mortgage became due.

Of the equity powers possessed by the courts of law, in Pennsylvania.

THIS was an action of covenant, brought by the plaintiff in error against the defendant in error, in the Disirict Court for the city and county of Lancaster, in which the declaration was as follows:

" Philip Voneida and Catharine Bechtoll, executors of the last will and testament of William Bechtoll deceased were summoned to answer Jacob Funk, in a plea of covenants broken, & c.: whereupon, the said Jacob complains, that heretofore, to wit, on the first day of April, in the year of our Lord, 1814, at the county aforesaid, by a certain indenture, then and there made, between the said William Bechtoll, in his lifetime, and Catharine, his wife, of the one part, and the said Jacob Funk, of the other part; one part of which said indenture, sealed with the seals of the said William and Catharine, the said Jacob here into court doth bring, the day whereof is the same day and year aforesaid; the said William, amongst other things, covenanted to and with the said Jacob, as follows, to wit, that the said William and Catharine, his wife, for and in consideration of the sum of 38921 l. i 6 is. 1 1/2 d., lawful money of the state of Pennsylvania, to them, in hand, well and truly paid by the said Jacob Funk, at and before the ensealing and delivery thereof, the receipt whereof they did thereby acknowledge, and thereof did acquit and forever discharge the said Jacob Funk, his heirs executors and administrators, by the said indenture, had granted, bargained, sold, aliened, enfeoffed, released and confirmed, and by the said indenture, did grant, bargain, sell, alien, enfeoff, release and confirm unto the said Jacob Funk, and to his heirs and assigns, all that certain plantation, & c."[Here followed a description of the premises conveyed.]

" Nevertheless, the said Jacob Funk avers, that the said William Bechtoll, at the time of ensealing, executing and delivering the deed and indenture above mentioned, was not seised of an indefeasible estate in fee simple, in the lands and premises above mentioned, freed from incumbrances, done or suffered from and by the said William Bechtoll, but that, at the time last aforesaid, the estate in fee simple of the said William Bechtoll in the said premises, were subject to incumbrances, which had been done and suffered from and by him, the said William Bechtoll.And so the said Jacob avers, that the said William in his lifetime, and the said Philip and Catharine, his executors, since his decease, although often requested, did not, nor have not, nor have either of them kept the said covenants, but had and have broken the same, to wit, at the county aforesaid, to the damage, & c."

To this declaration, the defendants pleaded " performance, with leave to alter and to give the special matter in evidence, " and afterwards added, the plea of " payment with leave, & c."

On the trial, the plaintiff, after having given in evidence a deed from William Bechtoll and Catharine, his wife, to Jacob Funk, dated 1st April 1814, which contained a covenant of special warranty, and also a mortgage from William Bechtoll to the executors of John Bechtoll, deceased, dated 4th of April 1812, for 1474 l. i 15 is. i 5 Id., payable in instalments, the last of which was to become due on the 1st of April 1830, offered to prove that Jacob Funk never knew of the incumbrance of the property, until some time in the year 1816: that when the fact of there being a mortgage on the premises became publicly known, the creditors of the said Jacob Funk pushed him, believing that the property he held might not be sufficient to pay off the said mortgage, and all his debts: that when his creditors became thus uneasy, he appointed four persons as his assignees, who agreed to accept the appointment, and the deed of assignment was accordingly prepared: and with the consent of his creditors, the assignees would have sold the same to the best advantage, and agreed to become bound to pay all the debts, provided the executors of the said William Bechtoll would lift the mortgage on the premises: that the said executors refused to do so, in consequence of which, suit was brought against him by Nicholas Yocum, and an award of arbitrators was filed in favor of the plaintiff for $2639 20, on the 28th November 1816, for which the whole of the premises mentioned in the declaration, were sold by the sheriff of Lancaster county, on the 11th March 1817, for the sum of $2850.To this evidence the counsel for the plaintiff objected; the court sustained the objection, overruled the evidence, and sealed a bill of exceptions.

The court delivered to the jury the following charge: Charge.The deed in this case contains a covenant of special warranty; this action is attempted to be supported on the covenant implied by the words " grant, bargain and sell." No damages are proved, and the mortgage given in evidence, is payable by instalments, the last of which will not be due for ten years, and no suit can be brought upon it.In the infancy of the province, an effect was given to these words, by an act of assembly, to protect purchasers who took deeds drawn by persons unskilled in the law; but it cannot be stronger than an express covenant against incumbrances; on such covenant, though incumbrances exist, yet, if no suit is brought upon them, and no damage sustained, he is not damnified by any breach of covenant, and the action is brought too soon.He cannot support a suit of this kind, until some damage is sustained actually, upon the covenant; and until he is put to trouble by it, from the default of the defendant, in not discharging those incumbrances, as they arise, he cannot complain of a breach of such covenant.The mortgage being upon record, is notice to all the world; it was the plaintiff's duty to search the record; and he might have protected himself by special covenants; not having done so, I think, at present, he cannot sustain this suit.A bill of exceptions to this charge was tendered by the counsel for the plaintiff.

Porter and Buchanan, for the plaintiff in error, referred to the act of 28th May 1715, sect. 6, 1 Sm.Laws 91;Lessee of Gratz v. Ewalt, 2 Binn. 95.

Jenkins and Hopkins, for the defendants in error, cited Bender v. Fromberger, 4 Dall. 436;Kent v. Welch, 7 Johns. 258;2 Caines 192-3; 4 Coke 80, 86;Delavergne v. Norris, 7 Johns. 358;4 Mass. 627, 629;Van Benthuysen v. Crapser, 8 Johns. 198;Waldron v. McCarty, 3 Johns. 471;Kortz v. Carpenter, 5 Johns. 120.

OPINION

DUNCAN J.

The great change introduced by the act of assembly, rendering real estate subject to judicial sale for payment of debts, and the necessity imposed on our courts, from the want of direct chancery jurisdiction, of considering every equitable, tangible interest in land, subject to levy and sale, produce, frequently, consequences which call for a liberal exercise of equitable powers, accommodated to this new state of things.

I will consider the special errors assigned, in the following order: 1st.Whether any breach of covenant entered into by the grantor, had occurred, so as to render him liable to any action, without some evidence of direct, actual damages? and 2d.Whether the plaintiff, without having laid any consequential damages, could give any evidence of them? and this will dispose of the whole case.

The words, " grant, bargain and sell," by the operation of law, and the express words of the act of assembly, are a covenant against incumbrances done or suffered by the grantor; in other words, that the estate was not defeasible by any act done by him.The action is brought on this covenant.Now, this covenant was broken the very instant it was entered into.The special covenant is by no means inconsistent with this general covenant; the implied covenant is not controlled by the special one; the effect of the words " grant, bargain and sell," can only be limited " by express words," contained in the deed; such is the direct provision of the act.There is no express limitation; and to imply one, would be contrary to natural justice, and the intention of the parties.It is an unqualified covenant against incumbrances done and suffered by the grantor, or those under whom he claims; ^[a] nor can it make any difference, that the mortgage was recorded, and the plaintiff had, therefore, constructive notice.It is no answer to his complaint, to say, it was his duty to search the record, and to have protected...