Markland v. Crump

• Decision Date: 31 December 1834
• Citation: 18 N.C. 94
• Court: North Carolina Supreme Court
• Parties: NATHANIEL MARKLAND, admr. of HENRY TUCKER, v. MARK CRUMP.

18 N.C. 94

NATHANIEL MARKLAND, admr. of HENRY TUCKER,

v.MARK CRUMP.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1834.

1. A covenant for quiet enjoyment runs with the land, and one who is evicted may recover upon such covenant in the deed of any prior vendor, and this whether he purchased with or without warranty.

2. An intermediate vendor cannot, in respect of his liability, upon his covenant for quiet enjoyment, recover of a prior vendor, but must first make good the damages of the person evicted.

ACTION to recover damages for the breach of a covenant of quiet enjoyment, contained in a deed, whereby the defendant conveyed land to the intestate of the plaintiff. The breaches assigned, were: 1. The eviction of the intestate by paramount title. 2. The eviction of the bargainee of the intestate.

The plaintiff having made out a prima facie case, for the defense it was proved that the interest of the intestate in the land had, before the eviction, been sold under a fi. fa. against the intestate, to one Marcum, and that the latter was the person who had really been evicted.

Upon this fact being admitted, his Honor, Judge Seawell, at Rowan, on the last circuit, ruled that the plaintiff, to entitle himself to a verdict, should "show a disturbance, either of his intestate, or of some person holding under him, as his tenant, whose possession was that of the intestate. That the plaintiff as administrator could not recover for a disturbance, when the person disturbed could claim the benefit of the covenant, in the deed to the intestate. That the covenant declared on either ran with the land to the assignee or it did not. If the former, the assignee being the person disturbed, was entitled to its benefit—that but one action could be maintained for the disturbance, and to allow that action to be brought by one whose interest had passed away, and who had received the full value of the land, for a disturbance which in no way molested him, and this to the prejudice of the person really injured, who had lost both the lands and his money, was not consistent either with reason or justice. That if, on the other hand, the covenant did not run with the land, and extend to the assignee—the purchaser under the fi. fa.—then it had not been broken by the eviction of the latter."

In submission to this opinion, the plaintiff suffered a nonsuit, and appealed.

RUFFIN, C. J. The opinion delivered in the Superior Court is that entertained by this Court; and very much upon the reasons expressed by his Honor. For it would seem to be a first principle that in an action sounding in damages, none can be recovered if none have been sustained by the plaintiff.

Marcum, the purchaser at sheriff's sale, has been regarded by the plaintiff's counsel as a purchaser with warranty; because, under the statute, he can have recourse to Tucker, the defendant in the execution. The Court supposes it clear that he is an assignee who, by reason of the privity of estate, is entitled to the benefit of, and bound by all covenants running with, the land. Spencer's case, 6th Resolution, 5 Rep., 17. But whether such recourse against Tucker would amount to such a warranty, or ought to be construed to have the same

effect, the Court does not deem it necessary to determine. Because we think an express warranty from Tucker to Marcum would not, upon the eviction of the latter, give an action to Tucker against Crump, on his covenant of warranty, nor be a bar to that of Marcum against Crump on the same covenant.

In support of the proposition to the contrary, the counsel for the plaintiff has been able to adduce no case in which that was the point adjudged. In Kane v. Sanger, 14 John., 89, Chief Justice Spencer states the general rule to be that where covenants run with the land, if it be conveyed before a breach of the covenant, the assignee only can sue upon the subsequent breach ; but if the assignor be himself bound in his deed, to indemnify the assignee against such breach, there the assignor only can bring the action. This is certainly a very explicit declaration of the opinion of a most respectable Judge. But it is not entitled to the authority of anadjudication, because it was not necessary to the decision of the case, and is only a dictum. There the plaintiff, who was the assignor, had immediately taken back the legal estate, by way of mortgage in fee; and therefore his assignee could not, under any circumstances, have had an action; for at the time of the breach he was not the assignee, but the plaintiff was reinvested with the estate by force of the mortgage. Upon this ground the plaintiff had judgment. As it was held that in the case proved the effect of the plaintiff's warranty could not be a bar to the action, it became immaterial to determine what the effect would have been if the estate had remained in the assignee until his eviction. No English case is referred to by the Chief Justice, and but one in this country, that of Bickford v. Paige, 2 Mass., 460. This last case does not seem to us to admit of such an interpretation. Chief Justice Parsons says that "the assignee alone can sue, unless the nature of the assignment be such that the assignor is holden to indemnify the assignee against a breach of the covenants by the original vendor, which is founded on the principle that no man can maintain an action to recover damages who has suffered none." This is a very clear opinion, that an assignee without a covenant from his immediate vendor may sue on a remote covenant, and that he alone can sue in such a case; and that for the very best reasons—

because nobody else is injured. But it affords no inference that an assignee with warranty may not also sue on a remote covenant, but only that in such case he is not the only person who can have remedy for a breach. In the context, it must mean that the assignee who is evicted may sue the remote covenantor for the damages sustained by him; but that this case is not like the former in which he alone could have the action, because in this case, another, besides the assignee, may sustain damages, namely, his assignor upon his engagement to indemnify. As without such engagement the assignor could not sue, because he could not be injured, so, where he paid the damages to the assignee upon such an engagement, the assignor could sue, because he then had suffered. But because the assignor can bring an action aftersuffering, it does not follow that he can bring his action upon the eviction of his assignee, and before satisfying the assignee, and to the exclusion of the assignee himself. This construction of the language of Chief Justice Parsons is that adopted by the Court in Withy v. Mumford, 5 Cowen, 137, in which the doctrine laid down in Kane v. Sauger is pointedly denied, under such circumstances as to destroy its authority, even in the courts of New York. For had the point been necessary to a decision in Kane v. Sauger, it is adjudged directly to the contrary in Withy v. Mumford, in which it was held that the assignee who is evicted may sue any one or more of the covenantors, whether immediate or remote; and that an assignor who has himself covenanted cannot sue a prior covenantor until he has himself satisfied the evicted assignee; but that upon doing that, he can.

This Court is at loss for a reason upon which the first rule laid down in the Supreme Court of New York can be sustained, or the second can be impeached. If there be a reason, it must be peculiar to covenants and conveyances of land. None such is perceived; and to us the position contended for seems to be inconvenient, unjust, and contrary to analogy. It multiplies suits, by requiring each assignee to sue his own vendor only. It may defeat the evicted person of his damages, by enabling his insolvent assignor to recover the money from the only person among those liable, who is able to pay it; and he may refuse to pay it over. Covenants which run with land were always exceptions to the maxim

of the common law, that choses in action could not be assigned. They cannot be separated from the land and transferred; but with the land they could, as being annexed to the estate in possession, and bound the parties in respect to the privity of estate. In other instances of assignments tolerated by law, the assignee having for the time being the right, is alone entitled to an action on the contract, and may have his action against any of the parties bound, either mediately or immediately. Negotiable mercantile instruments afford a similar example. The holder may sue, not only his ownendorser, but also any one whose name is on the paper. But an endorser cannot have an action against any party prior to himself, until he shall have taken up the paper from the last holder, and thus become the holder...