Guild v. Wallis

• Decision Date: 16 July 1929
• Citation: Guild v. Wallis, 130 Or. 148, 279 P. 546 (Or. 1929)
• Parties: GUILD v. WALLIS ET AL.
• Court: Oregon Supreme Court

279 P. 546

130 Or. 148

GUILD v. WALLIS ET AL.

Supreme Court of Oregon

July 16, 1929

Department 1.

Appeal from Circuit Court, Washington County; George R. Bagley Judge.

Suit by Len W. Guild against R. A. Wallis and others. From a decree of dismissal, plaintiff appeals. Reversed and remanded, with directions.

E. B. Tongue, of Hillsboro, and T. J. Cleeton, of Portland (W. V. Cowan, of Oakland, Cal., on the brief), for appellant.

Frank Holmes, of McMinnville (R. J. Venables, of Spokane, Wash., on the brief), for respondent Federal Land Bank.

R. F Peters, of Hillsboro (Hare, McAlear & Peters, of Hillsboro on the brief), for respondents R. A. Wallis and others.

RAND, J.

The plaintiff, Len W. Guild, and his brother, J. J. Guild, were the owners in fee as tenants in common of a tract of land in Washington county, each owning an undivided one-half interest therein. While so owning the land, they voluntarily partitioned it among themselves, and each conveyed to the other all his right, title, and interest in the part which had been so allotted to him. The deed from plaintiff to his brother was a quitclaim deed; the granting words being "remise, release and forever quitclaim." The consideration expressed in the deed, together with the granting clause, omitting therefrom the description of the land conveyed, reads as follows:

"Know all men by these presents, that I, L. W. Guild, unmarried in consideration of one dollar, to me paid by J. J. Guild, and the further consideration and agreement on the part of said J. J. Guild, his heirs and assigns, to keep open and in good order two certain ditches over and across the land this day conveyed to him by grantor herein, sufficient to carry off the water and enable the said L. W. Guild to properly drain the land this day conveyed to him by J. J. Guild which land adjoins the land herein conveyed, do hereby remise, release and forever quitclaim unto the said J. J. Guild and unto his heirs and assigns all my right, title and interest in and to the following described parcel of real estate. * * *"

The defendants were not parties to said deed, but are the owners in severalty of different parcels of the land, and between them own all of the tract which was thus conveyed by plaintiff to his said brother; they having subsequently acquired the same through conveyances from J. J. Guild. Plaintiff is the owner of the land of which he received a deed for an undivided one-half interest from his brother, and for the drainage of which his brother covenanted to keep open and in good order two certain ditches sufficient to carry off the water and enable him to properly drain the same. The defendants, the complaint alleges, have failed and neglected to keep said ditches open and in good order, and, because of their said failure, it has caused the water to back up and flood plaintiff's land, to the great loss and damage of plaintiff.

This suit was brought to recover damages for the injuries thus far sustained and for a mandatory injunction requiring the defendants to keep said ditches open and in good order as covenanted in the deed by J. J. Guild, and, failing the issuance of such order, that plaintiff be permitted to go upon said land and clean out said ditches and to have the costs thereof impressed as a charge against defendants' lands. The defendants appeared and separately demurred to the complaint upon the ground that the complaint failed to state facts sufficient to constitute a cause of suit. The learned trial court sustained the demurrers to the complaint, and, from a decree dismissing the complaint, plaintiff has appealed.

In support of their demurrers, the defendants contend that the covenant contained in the acknowledgment of the consideration for which the deed was executed, as expressed in the deed itself, was a personal covenant, and not a covenant running with the land, and was binding upon the grantor only, and not upon subsequent owners of the land who acquired title through him. They seem to base this contention upon the claim that a covenant running with the land must be inserted independently of the consideration and in a subsequent part of the deed; that a covenant running with the land cannot be created by a quitclaim deed, which they assert is a deed of release only and not a deed of conveyance; that a court of equity will not grant a mandatory injunction requiring the performance of ordinary personal services; that plaintiff has a full, complete, and adequate remedy at law, and the Federal Land Bank for itself claims that it was created by an act of Congress (Federal Farm Loan Act, 39 Stat. 360 [12 USCA § 641 et seq.]), and is a governmental institution which was created for the purpose of selling bonds and loaning money to farmers, and could not be bound to perform the covenant, even though it became the subsequent owner of the land.

Any words in a writing under the hand, whether sealed or unsealed, of a person importing an agreement, is a covenant, and, while ordinarily quitclaim deeds do not contain covenants, yet, if one is clearly expressed in that form of deed, there can be no reason why it should not be as enforceable in that form of deed as in any other form of deed. The covenant involved here concerned the land which the defendants have since acquired by mesne conveyances from J. J. Guild, and formed a part of the consideration for which plaintiff conveyed an interest in the land to his brother. Since the promise to perform the covenant was a part of the consideration for which plaintiff parted with an interest in the land, the covenant was properly inserted in the consideration clause of the deed. On its face the covenant purports to bind not only J. J. Guild but also "his heirs and assigns," and by its very terms it is as binding upon all persons who have since acquired title to the land through J. J. Guild as it was upon J. J. Guild himself at the time he was the owner of it. This follows because all such persons are charged with constructive notice of the quitclaim deed in question, it being one of the instruments making up their chain of title.

"Wherever a purchaser," says Mr. Pomeroy, "holds under a conveyance, and is obliged to make out his title through that deed, or through a series of prior deeds, the general rule is firmly established that he has constructive notice of every matter connected with or affecting the estate which appears either by description of parties, by recital, by reference, or otherwise, on the face of any deed which forms an essential link in the chain of instruments through which he must derive his title." 2 Pomeroy's Equity (3d Ed.) § 626. In the following sections, the same author says that the notice resulting from recitals contained in title deeds is absolute in its nature, except as to matters which are wholly foreign to the nature and objects of the instrument or as to matters which are purely collateral and dealing with another subject-matter. The reason for...