Heflin v. Phillips

• Decision Date: 02 November 1892
• Citation: 96 Ala. 561,11 So. 729
• Parties: HEFLIN ET AL. v. PHILLIPS.
• Court: Alabama Supreme Court

11 So. 729

96 Ala. 561

HEFLIN ET AL. v. PHILLIPS.

Supreme Court of Alabama

November 2, 1892

Appeal from circuit court, Randolph county; JAMES R. DOWDELL, Judge.

Action by Zachariah T. Phillips against Wilson L. Heflin and others on a bond executed on January 27, 1888, and payable on January 21, 1889, for the purchase price of land. Judgment for plaintiff. Defendants appeal. Affirmed.

The defendants pleaded two special pleas, based on the following facts: The defendant W. L. Heflin, on February 11, 1885 purchased certain lands in Randolph county from the plaintiff, and at the time of the purchase and sale the plaintiff neither had title nor possession of a certain 120 acres of said land, nor did he put the said Heflin in the possession; and the said Wilson L. Heflin has never been in the possession of the said land. The deed which was then executed was a deed containing the apt words of conveyance "grant, bargain, and sell," but did not contain express covenants of warranty. The pleas show that the title to the land was never in Phillips, plaintiff and vendor avers that it was in certain other persons, and that the said Wilson L. Heflin, the purchaser, is not now, and never was in the possession of the said land, and cannot obtain possession thereof. The pleas are based on the fact of the breach of the warranty as guarantied by the words contained in the deed, "grant, bargain, and sell," and are in the nature of a set-off. The plaintiff interposed to the pleas the following demurrer: "The pleas fail to state that the lands therein described and said to have been purchased by defendant from plaintiff have been incumbered by plaintiff, or suffered to be incumbered by the plaintiff." The court sustained this demurrer, and the defendant declined to plead further, whereupon judgment was rendered for the plaintiff.

N. D. Denson, for appellants.

Kelly & Smith, for appellee.

THORINGTON J.

The statute of 1803 provided that the words "grant, bargain sell," when used in deeds, whereby any estate of inheritance in fee simple is limited to the grantee or his heirs, should be adjudged an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an indefeasible estate in fee simple, freed from incumbrances done or suffered from the grantor, as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited in express words contained in such deeds. In construing this statute, this court declared that the words "grant, bargain, sell," do not import an absolute or general covenant of seisin against incumbrances and for quiet enjoyment, but that they amount to a covenant only against acts done or suffered by the grantor and his heirs. The language employed by the court on this question is as follows: "We think the most natural interpretation, and the only one that consists with the established rules of construction, requires that the grantor should be held to covenant that the estate undertaken to be conveyed was indefeasible as to any act of himself. The opposite conclusion can only be attained upon the hypothesis that the second clause of the section provides for two distinct covenants, viz.: (1) That the grantor stipulates with the grantee, as against all the world, that he is seised of an indefeasible estate in fee simple; (2) that he is seised of such an estate freed from incumbrances done or suffered by himself. If this idea were well founded, the second covenant would be wholly inoperative, as it would be embraced by the first, which is much more extensive. But this clause must be regarded as a unit, the latter words limiting and controlling those which precede them. *** Again, the third clause serves further to show that the second must be restricted in the manner we have stated. It is limited in its objects in covenanting 'for quiet enjoyment against the grantor, his heirs and assigns.' Why thus restrict the covenant for quiet enjoyment, if it was intended by the first part of the second clause to make the words 'grant, bargain, sell,' import a general warranty? It would destroy the harmony of the section; but all its parts operate together upon the construction we have given it." Roebuck v....