Jones v. Warner

• Decision Date: 31 January 1876
• Citation: 1876 WL 9990,81 Ill. 343
• Parties: JOHN JONESv.JOHN WARNER.
• Court: Illinois Supreme Court

81 Ill. 343

1876 WL 9990 (Ill.)

JOHN JONES

v.JOHN WARNER.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of DeWitt county; the Hon. LYMAN LACEY, Judge, presiding.

Mr. E. H. PALMER, for the appellant.

Messrs. MOORE & WARNER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action brought by appellant on the covenants in a deed of conveyance made by appellee, conveying lands in Jasper county, Missouri. The deed purports to convey the 40-acre tract in controversy, with other lands. The deed contains a covenant that the grantor was well seized, and that he had good right to convey the same in manner and form aforesaid, and that the premises were free from all incumbrances, and a covenant of general warranty. The declaration assigned breaches that appellee was not well seized, and did not have good right to sell and convey the same, and that appellant was evicted. The record is greatly encumbered by a large number of useless pleas, upon a portion of which issues were joined, and a trial had, resulting in a verdict and judgment in favor of defendant, and plaintiff appeals.

It is seldom that we have a transcript of a record come before us in such a confused and unsatisfactory manner as that in this case. And again, we have received but little aid in comprehending it, from the abstract filed, nor has appellee made an additional abstract, but we have been left, as best we could, to learn what the record contains. Appellee's counsel says, if the deed sued on is not in the record, the plaintiff's case fails. He does not even examine the record to see if it is wanting, which seems to indicate great indifference whether the case is, or not, properly before us for consideration.

On the trial, in the court below, appellant offered and read in evidence a decree rendered by the circuit court of Jasper county, Missouri. The decree finds the title to this land in one Elizabeth Rose, who had been the widow of Samuel Deverel. The decree recites that appellee had been duly notified of the pendency, object and general nature of the suit, by publication in a newspaper published in that county. And the decree further recites and finds, that appellee, on the 15th day of May, 1861, sold, and executed a bond for, the 40 acres, out of which this controversy arises, to Samuel Deverel, for a conveyance; that the bond was by him assigned to Elizabeth Deverel, on the 10th of October, 1861; that Samuel Deverel departed this life on the 15th of December, of the same year, and that Elizabeth had intermarried with Thomas J. Rose. The decree, in terms, divested appellee of all title, and vested it in Elizabeth Rose, and appellant introduced evidence that Elizabeth Rose was in possession of the land, and that he was unable to obtain possession.

It appears that the deed to appellant was executed on the 27th day of February, 1861, some two months and a half, according to the finding in the decree, before the bond was made to Deverel. As both parties claim from appellee, and if this documentary evidence can be regarded as true, and if there is nothing to impeach these dates or the facts, then we fail to see that the covenants of seizin and good right to convey have ever been broken. They are covenants in presenti, and if broken at all were broken when the deed was delivered. The covenants are, that he was then well seized, and then had good right to convey, and not that he would afterwards be seized or have right to convey. And the same is true of the covenants against incumbrances.

It then follows, that there was no breach of either of these covenants, as it is not denied that appellee owned the land when he conveyed it to appellant, and, if so, he became fully and completely invested with the title, and the first two of the covenants were thereby performed, and there is no evidence that the land was, in any manner, incumbered at that time, and the presumption, therefore, is, that this covenant was also performed.

It then remains to determine, whether appellant has shown a right to recover under the covenant of general warranty. Under that covenant, to recover, the covenantee must show that he has been evicted by an outstanding title, and not by the acts of the covenantee, or that he is unable to obtain possession under the title derived from the covenantor, by reason of the fact that the title he has received is inferior to the title by which the land is adversely held. See Beebe v. Swartwout, 3 Gilm. 162; Moore v. Vail, 17 Ill. 185; Brady v. Spurck, 27 Ill. 479; Claycomb v. Munger, 51 Ill. 373; Bostwick v. Williams, 36 Ill. 65.

Now, appellant having become invested with paramount title to this land, he was only required to register his deed in the county where the land was situate, to place himself in a position that he could have defended against all claims; or if his rights had been invaded, he could have recovered against all persons committing such wrongs. But we presume he failed to record his deed, and has thus enabled appellee, by accident or design, to make a bond for the conveyance of the land that seems to be valid and binding.

It is true, that such a bond does not transfer a legal title, but it does pass an equitable title, and if the purchaser acted in good faith, without notice, and paid the value of the land, and was the first to record his bond or to acquire possession, his title, in equity, would prevail over appellant's unrecorded deed, but appellant, at law, could recover the land under his deed as against a mere bond; and as long as he can acquire possession by entry, or by a suit at law, he can not recover on the covenant, unless he can show paramount, outstanding title at the time of the execution of the covenant. This is the general rule, subject, it may be, to some...