Mackintosh v. Stewart

• Decision Date: 06 February 1913
• Citation: 181 Ala. 328,61 So. 956
• Parties: MACKINTOSH et al. v. STEWART.
• Court: Alabama Supreme Court

61 So. 956

181 Ala. 328

MACKINTOSH et al. v. STEWART.

Supreme Court of Alabama

February 6, 1913

Rehearing Denied April 23, 1913

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by D.H. Stewart against James A. Mackintosh and others to have an abatement of purchase price and to enjoin the bank from paying certain notes until the matter of the purchase price is determined. From a decree overruling demurrers to the bill, respondent Mackintosh appeals. Affirmed.

C.J Torrey, of Mobile, for appellant.

Ervin &amp McAleer, of Mobile, for appellee.

SAYRE J.

The bill shows that Stewart bought a tract of land from Mackintosh, who resides in the state of New Jersey, giving notes for deferred payments. By agreement, Mackintosh's deed was made to Tonsmeire "as trustee," without more to define the trust. There were no express covenants, but the words of conveyance were, "grant, bargain, sell and convey." The City Bank & Trust Company of Mobile had let Stewart have money with which to make a partial payment, and a few days after the deed of trust had been executed Stewart and the bank entered into a formal agreement by which the bank, among other things, agreed to pay the balance due to Mackintosh, looking for reimbursement to the proceeds of sales of the land, which was to be subdivided and sold in lots by Stewart. At the time of these transactions--they were one in effect--strangers were in the adverse possession of parts of the tract claiming to own the same. The purpose of the bill is to have a pro rata abatement of the purchase price on account of those parcels adversely held, and to that end an ancillary prayer is that the bank be enjoined from paying any balance to Mackintosh until the proper amount of the abatement be ascertained; complainant offering to pay that amount when ascertained. The chancellor overruled a demurrer to the bill, and Mackintosh appeals.

Appellant's main contentions are that complainant by his bill shows no wrong, or, if so, that he has an adequate remedy at law; but we, after due consideration, have reached the conclusion that these contentions ought not to be sustained.

Complainant's specifically alleged grievance is that when he took his deed he failed to get actual possession of certain parts of the property bargained for--this because they were at the time in the adverse possession of strangers who still hold them; the averment that this possession has continued down to the time of suit brought being important only as showing that complainant has not as yet had a remedy--and the question is whether he took any assurance for the possession. Unaided by the statute (section 3421 of the Code), the words of the deed to plaintiff, or to Tonsmeire for plaintiff's use and benefit, operated as a conveyance, but warranted nothing as to title. Complainant took only such title, estate, or interest as the vendor had at the moment the conveyance was executed by delivery. It becomes necessary then to consider how the deed is influenced as to its operation and effect by section 3421, which, by the provisional elimination of words and phrases immaterial to the purposes of this case, may be read as follows: In all conveyances of estates in fee, the words "grant," "bargain," "sell," or either of them, must be construed an express covenant to the grantee that the grantor was seised of an indefeasible estate in fee simple, free from incumbrances done or suffered by the grantor. It is uniformly held that the covenant that the grantor is seised of an indefeasible estate in fee, when expressly made, is a covenant for that complete title which is formed by the union in one person of right and possession, and is broken as soon as made, if there is an outstanding superior title, or an incumbrance diminishing the value or enjoyment of the land, or if, in general, the grantor has not substantially the very estate, both in quantity and quality, which he professes by his deed to convey. Moore v. Johnston, 87 Ala. 220, 6 So. 50; Copeland v. McAdory, 100 Ala. 553, 13 So. 545. But the implied covenant of the statute is another thing.

This statute, dating back to territorial times in this state, was copied almost literally from a statute of Pennsylvania which antedated the Revolution. It has been substantially enacted in a number of states, and without exception--aside from an apparent dictum in Funk v. Voneida, 11 Serg. & R (Pa.) 111, 14 Am.Dec. 617, referred to in our case of Roebuck v. Duprey, 2 Ala. 535, and corrected by the Supreme Court of Pennsylvania in Knepper v. Kurtz, 58 Pa. 484--Chief Justice Tilghman's exposition of the true meaning and effect of the statute in Gratz v. Ewalt, 2 Bin. (Pa.) 95, has been followed. Roebuck v. Duprey, supra; Griffin v. Reynolds, 17 Ala. 198; Parker v. Parker, 93 Ala. 80, 9 So. 426; Heflin v. Phillips, 96 Ala. 561, 11 So. 729; Douglass v. Lewis, 131 U.S. 75, 9 Sup.Ct. 634, 33 L.Ed. 53; Rawle on Covenants, § 285 et seq.; 8 Am. & Eng.Encyc. 79, note 3; 11 Cyc. 1047, note 31, where the cases are collated. All the authorities hold that the covenants implied by the statute are limited to the acts of the grantor and those claiming under him, and do not extend to defects of title anterior to the conveyance to him. For more pointed answer to the specific argument which appellee has based upon the frame of the statute, we quote from Rawle on Covenants for Title: "The construction of the statute was carefully considered [in Gratz v. Ewalt, supra], and it was held that the first covenant [that the grantor was seised of an indefeasible estate in fee simple], which standing by itself would be unlimited, must be taken in connection with the subsequent one against incumbrances which is limited, and consequently that none of the covenants implied by the statute were to be construed as extending beyond the acts of the covenantor; and the construction thus given has never been departed from in Pennsylvania; and it is said by Chancellor Kent (4 Kent's Com. 474) that by the decision in Gratz v. Ewalt the words of the statute are divested of all dangerous tendency, and that it will equally apply to the same statutory language in other states." Section 285. In conclusion on this point, the construction of the statute to the general effect that the first covenant must be taken subject to the same limitations as the second has been too long followed here and elsewhere, and the statute itself, with this construction on it, has been too often re-enacted in the various codifications of the laws of this state, to be now brought into question; and, but for the...