Knepper v. Kurtz

• Decision Date: 20 May 1868
• Citation: 58 Pa. 480
• Parties: Knepper <I>et al.,</I> Executors, <I>versus</I> Kurtz, Administratrix.
• Court: Pennsylvania Supreme Court

Page 480

58 Pa. 480

Knepper et al., Executors, versus Kurtz, Administratrix.

Supreme Court of Pennsylvania.

May 12, 1868.

May 20, 1868.

May 12th 1868.

Before THOMPSON, C. J., STRONG, AGNEW, and SHARSWOOD, JJ. READ, J., absent

Error to the Court of Common Pleas of Franklin county: Of May Term 1868, No. 85.

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J. McD. Sharpe, for plaintiffs in error, cited Act of May 28th 1715, § 6, 1 Sm. L. 95 Purd. 322, pl. 77; Gratz v. Ewalt, 2 Binn. 95; Cain v. Henderson, Id. 108; Whitehill v. Gotwalt, 3 Penna. R. 313; Seitzinger v. Weaver, 1 Rawle 377; Funk v. Voneida, 11 S. & R. 111; Patton v. McFarlane, 3 Penna. R. 419; Skinner v. Starner, 12 Harris 123; Wilson v. Cochran, 10 Wright 230; Wolbert v. Lucas, 10 Barr 74; Poke v. Kelly, 13 S. & R. 165; Tod v. Gallagher, 16 Id. 263; Withers v. Atkinson, 1 Watts 248; Cox v. Henry, 8 Casey 21; Murphy v. Richardson, 4 Id. 288; Youngman v. Linn, 2 P. F. Smith 413; Rawle on Cov for Title 311; Dobbins v. Brown, 2 Jones 79; Stewart v. West, 2 Harris 336.

F. M. Kimmel and G. W. Brewer, for defendant in error.— The Reporter received no paper-books from the defendant in error.

The opinion of the court was delivered, May 20th 1868, by SHARSWOOD, J.

Nothing appears to be better settled in this state as well as elsewhere than that to maintain an action upon a covenant of general warranty, an actual eviction must be averred and proved. Not indeed that the party need wait to be actually turned out of possession by legal process, for he may surrender when the result is plainly inevitable. In one case it was held that a judgment in ejectment by itself was not sufficient: Paul v. Witman, 3 W. & S. 407. All the cases agree that there must be a change of possession: Clarke v. McAnulty, 3 S. & R. 364; Stewart v. West, 2 Harris 336; Dobbins v. Brown, 2 Jones 75; Wilson v. Cochran, 10 Wright 229. It is different where an action is brought to recover unpaid purchase-money. There the defendant in Pennsylvania has always been allowed to set up as an equitable defence any outstanding better title actually asserted, which would amount to a failure of consideration of the contract of purchase, whatever may be the actual covenants in the deed of conveyance. Such a defence was permitted originally because equity was always a part of the law of this state, and the defendant could avail himself as a defence of whatever matter would entitle him to relief at the hands of a chancellor. That was the principle on which was decided Steinhauer v. Witman, 1 S. & R. 438, and the long train of authorities which have followed in its wake.

It is not necessary to vindicate the law as thus settled, but there would be no difficulty in doing so. The warrantee can always give notice to his warrantor of any threatened claims, and it is his duty and interest to do so as well to save him from unnecessary cost as to render the proceeding, if successful, conclusive against him. To allow him to settle outstanding claims or encumbrances without notice or suit, and then recover the amount on his covenant, would place his covenantor at great disadvantage in point of evidence, and otherwise in defending against him instead of the original claimant.

It is urged also that the words "grant, bargain and sell" constitute an implied covenant, not only against encumbrances done and suffered by the grantor, but by all who have preceded him in the title. A dictum by Judge Duncan to this effect in Funk v. Voneida, 11 S. & R. 111, is relied on. No such question arose in that case, which was that of a mortgage by the grantor...