Geiszler v. De Graaf

• Decision Date: 26 March 1901
• Citation: 59 N.E. 993,166 N.Y. 339
• Parties: GEISZLER v. DE GRAAF et al.
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 339

59 N.E. 993

GEISZLER

v.DE GRAAF et al.

Court of Appeals of New York.

March 26, 1901.

Appeal from supreme court, appellate division, First department.

Action by Mary Geiszler against Amanda M. De Graaf and others. Judgment for plaintiff. From an order of the appellate division (60 N. Y. Supp. 651) reversing the judgment and granting a new trial, plaintiff appeals. Affirmed.

Frank L. Holt and Isaac N. Miller, for appellant.

George C. Lay, for respondents.

O'BRIEN, J.

The plaintiff is the remote grantee of lands which the defendants' testator owned on the 29th day of January, 1892, and on that day conveyed to one Knabe by deed with full covenants. At the time of this conveyance the lands were incumbered by a local assessment amounting to $224.41, with interest. On the 12th day of March, 1892, Knabe conveyed the lands to one Breirly, expressly subject to the assessment, and on the 2d day of October, 1893, the latter conveyed to the plaintiff, with a covenant against incumbrances. On the 23d day of October, 1896, the plaintiff was obliged to and did pay the assessment, amounting at that date to $341.31, in order to discharge the lien upon the land; and he now seeks to recover that sum, with interest, from the personal representatives of the original grantor from whom the title was derived.

The plaintiff cannot recover without establishing two propositions of law: (1) That the benefit of the covenant against incumbrances contained in the deed of the defendants' intestate to Knabe passed to the plaintiff through the intermediate conveyances; in other words, that it ran with the land. (2) That the continuity of the covenant was not interrupted or its benefits extinguished as to the plaintiff by the fact that his immediate grantor took the title expressly subject to the assessment or incumbrance which is the basis of the action. The right of a remote grantee of real estate to recover damages for breach of the covenants in the deed has been exhaustively discussed in a recent case in this court, and the point in that case was settled only after four appeals, and then by a bare majority of this court. But in that case the question that we are now concerned with was not involved, since the action was upon the covenant for quiet enjoyment and warranty made by a stranger to the title, and it was held that under the circumstances of the case the covenant of the stranger was personal, and did not run with the land. The case turned upon the point that there was no such privity of estate or contract between the husband who had joined with the wife in the covenant and the plaintiff as would attach the covenant to the land, and carry liability through the chain of title to a remote grantee. Mygatt v. Coe, 152 N. Y. 457, 46 N. E. 949; Id., 147 N. Y. 456, 42 N. E. 17;Id., 142 N. Y. 78, 36 N. E. 870,24 L. R. A. 850;Id., 124 N. Y. 212, 26 N. E. 611,11 L. R. A. 646. That was a very different question from the one now before us, which is simply whether the covenant against incumbrances runs with the land, so as to enable a remote grantee to recover upon it.

We can decide the case upon another question, comparatively insignificant, and leave the principal controversy open for litigants to grope their way through conflicting decisions to some conclusion as to what the law is on the subject. But the right of a remote grantee to recover for breach of the covenant against incumbrances is a question arising almost every day, and a court of last resort should meet it when presented, and settle the law one way or the other.

It was the general rule of the common law that all covenants for title ran with the land until breach. In this state it has been held that a breach of the covenants of seisin, of right to convey, and against incumbrances occurred, if at all, upon delivery of the deed, while those for quiet enjoyment, warranty, and for further assurance were not broken until an eviction, actual or constructive. Rawle, Cov. (5th Ed.) § 202, and note. And it has been generally held that those of the former class do not run with the land, while the latter do. The foundation of this distinction is not clearly traceable among the early English decisions. The principal reason for it, however, seems to have been that at common law no privity of estate or tenure existed between a covenantor and a remote covenantee, and, therefore, when a breach of a covenant of title occurred, if it was not such a covenant as was affixed to the land and ran with it, it could not be taken advantage of by a remote covenantee or a stranger to the original covenant, since it was, as to him, a mere chose in action, and at common law choses in action were not assignable. But now choses in action are assignable, and the question is whether the ancient law concerning the covenant against incumbrances has survived the reasons upon which it was founded. The operation of the common-law rule upon the grantee seeking to enforce the covenant against incumbrances was always inconvenient, and the rule itself exceedingly illogical. While it was held that the breach occurred upon delivery of the deed, it was also held that the covenantee could not recover more than nominal damages until he had paid off the incumbrance, or had been actually or constructively evicted. Delavergne v. Norris, 7 Johns. 358;Hall v. Dean, 13 Johns. 105;Stanard v. Eldridge, 16 Johns. 254;Grant v. Tallman, 20 N. Y. 191;McGuckin v. Milbank, 152 N. Y. 297, 46 N. E. 490. It was virtually held that, when the incumbrance was a money charge which the grantee could remove, there were two breaches of the covenant,-one nominal, entitling the party to but nominal damages, and the other substantial, to be made good by the actual damages sustained,-and...