McDonough v. Martin

• Decision Date: 11 January 1892
• Citation: 16 S.E. 59,88 Ga. 675
• Parties: McDONOUGH et al. v. MARTIN.
• Court: Georgia Supreme Court

16 S.E. 59

88 Ga. 675

McDONOUGH et al. v. MARTIN.

Supreme Court of Georgia

January 11, 1892

Syllabus by the Court.

Where the terms of a deed of conveyance, taking the whole together show that the instrument is in its essence a quitclaim title and that the makers intended no warranty except as against themselves and their own acts, a failure of the title to two of the lots out of a great number covered by the conveyance by reason of the existence of a previous outstanding better title, will be no breach of any implied covenant arising out of a recital of facts or out of the use of words of conveyance, no fraud or intentional misrepresentation being alleged. Nor will the failure of the vendees to get or to hold possession of such two lots, without any fraud or misconduct on the part of the vendors, constitute a defense to an action for the purchase money, or any part thereof.

Error from city court of Savannah; W. D. HARDEN, Judge.

Action by J. S. Martin against McDonough & Co. on a note given for the purchase money of certain land. Judgment for plaintiff. Defendants bring error. Affirmed.

Garrard & Meldrim, for plaintiffs in error.

Geo. A. Mercer, for defendant in error.

BLECKLEY C.J.

When this case was decided the syllabus was formulated by the court, handed down, and filed. Since then an argument in elucidation and support of the decision has been prepared at my request by A. H. Davis, Esq., one of our official stenographers. In studying and revising his argument, I have examined every authority to which it refers. My associates, after hearing it read, concur with me in adopting it as the opinion of the court. We do not merely recite it, but make it our own. For this reason, quotation marks are omitted.

This is an action on a note given for the purchase money of a large number of lots of land. The plea sets up (1) damages by a breach of the plaintiff's covenant that the title to the land was in him, and of the covenant for possession and seisin, the defendants having been evicted from two of the lots by title paramount; (2) failure of consideration in the loss of two of the lots, which the plaintiff covenanted that he owned. The plea makes no issue of fraud, misrepresentation, concealment, or mistake. The parts of the deed material to show the undertaking of the plaintiff are as follows: "This indenture *** between John S. Martin, *** Andrew J. Miller, *** Cornelia V. Miller, the wife of the said Andrew J. Miller, *** Sarah E. Miller and R. M. Miller, by their guardian ad litem, Andrew J. Miller, as parties of the first part, and John J. McDonough and Tiney B. Thompson, *** and Edward Burdett, *** copartners, composing the firm of McDonough & Co., *** as parties of the second part, witnesseth that, whereas, the title to certain lands, hereinafter mentioned as described, is in the said John S. Martin, *** as evidenced by a certain deed of conveyance made by Henry Gallagher, assignee in bankruptcy of A. J. Miller, *** to said Martin; *** and whereas, certain portions of the lands described were *** set apart to said Andrew J. Miller, as the head of a family, as a homestead; *** and whereas, under a proceeding had before the *** judge of the superior court of Pierce county, certain orders were passed *** authorizing a private sale of the homestead property, in which proceeding all the parties at interest were duly represented: *** Said parties of the first part *** have granted, bargained, sold, remised, conveyed, released, and quitclaimed, and by these presents do grant, bargain, sell, remise, convey, release, and forever quitclaim, unto said parties of the second part, in their full possession and seisin, and to their heirs and assigns, the following lots of land, and all the estate, right, title, interest, use, trust, property, claim, and demand whatsoever, both at law and in equity, of said parties of the first part of, in, to, or out of all those lots, tracts, or parcels of land," etc. "To have and to hold the said conveyed and released premises unto said parties of the second part, their heirs and assigns, to their only proper use, benefit, and behool forever, *** so that neither the said John S. Martin, or the said Andrew J. Miller individually or as guardian ad litem, as hereinbefore stated, or said Cornelia V. Miller, or said Sarah E. and R. M. Miller, or either of them, their heirs and assigns, nor any other person or persons in trust for them or in their name, or in the name, right, and stead of any of them, shall or will, can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or demand any right, title, interest, or estate in or out of said premises above described, and hereby released and conveyed; but that said parties of the first part, and every of them, their heirs and assigns, from all estate, right, title, interest, property, claim, and demand whatsoever of, in, to, or out of said premises or any parcel thereof *** is, are, and shall be by these presents forever excluded and debarred." The subject here conveyed is described as "the following lots of land, and all the estate, right, title, interest," etc., "of the parties of the first part." The deed uses appropriate words of release and quitclaim, and lacks the usual covenant of general warranty, which, by Code, § 2703, includes covenants of a right to sell, of quiet enjoyment, and of freedom from incumbrances. There are no formal covenants at all, except the one against any title, claim, etc., under the parties making the deed.

Covenants are of two kinds,--express and implied. Express are those stated in words more or less distinctly exposing the intent to covenant, and implied are those inferred by legal construction from the use of certain words of conveyance.

The plea makes it necessary to determine whether this deed contains a covenant of either sort. It is insisted that the recital that the title was in the plaintiff, as evidenced by a certain deed, amounts to a covenant of title, though informally expressed. A covenant requires no special form but, if it is clearly the intention of the grantor to answer for the truth of a statement in the instrument, this will constitute a covenant on his part. There is authority holding that a recital may have the force of a covenant. 2 Devl. Deeds, § 883; 4 Amer. & Eng. Enc. Law, 469; Severn's Case, Leon. 122; Christine v. Whitehill, 16 Serg. & R. 98, (GIBSON, C.J., dissenting.) Possibly this means that, where the deed is informally drawn, without any technical covenants, the court may find an undertaking of some sort in the recital; for when there is an express covenant the recital will not be construed as an additional covenant. Whitehill v. Gotwalt, 3 Pen. & W. 313, (overruling Christine v. Whitehill, supra;) Wright v. Shorter, 56 Ga. 72. At any rate that a recital may ever attain the dignity of a covenant is controverted by high authority. "Owing to a misapprehension of one or two old cases, the dangerous doctrine has been more than once broached that covenants for title may be implied from a recital; but this has since been distinctly and decisively repudiated." Rawle, Cov. § 280. And see Ferguson v. Dent, 8 Mo. 667, holding that a recital in the description of the premises is not a covenant; Delmer v. McCabe, 14 IR.C.L. 377, holding that a recital of seisin, when modified and explained by other parts of the instrument, does not amount to a covenant. The true rule is to view the recital in the light cast on it by the rest of the deed, and give effect to the intention as a consistent whole. Platt, Cov. 33; Severn's Case, supra; 4 Amer. & Eng. Enc. Law, 469; Code, § 2697. Now, if this recital, standing alone, were equivalent to a general warranty of title, it would be restrained and reduced by the express limited covenant; otherwise the latter, which is set out with much technicality and verbosity, would be nullified and destroyed by the recital, which is mere inducement, and not fairly interpretable as a substantive covenant. Such a construction would override the plain intention to covenant specially. Where a conveyance contains both a general and a special covenant touching the same subject, which are inconsistent, the general will not enlarge the special covenant, but will be thereby restricted. Rawle, Cov. § 287 et seq.; 2 Sugd. Vend. 605 et seq.; Bricker v. Bricker, 11 Ohio St. 240. The order in which the conflicting covenants occur does not seem to be material at the present day, because the intent is gathered from the whole instrument. Rawle, Cov. § 288, and note. It would seem to be more especially just to let the special covenant prevail where, as in this case, the general covenant not only stands upon implication, but is of questionable existence, while the special covenant is expressed with great fullness and regard to technicality. In Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 276, the action was brought upon a covenant claimed to exist in the recitals of the instrument which contained technical covenants, the claim being rested on the fairness and equity of that construction. (See argument for the canal company.) The decision set out in the headnote was as follows: "In the case of a contract drawn technically in form, and with obvious attention to details, a covenant cannot be implied, in the absence of language tending to a conclusion that the covenant sought to be set up was intended. The fact that the nonimplication of it makes the contract, in consequence of events happening subsequently to its being made, quite unilateral in its advantages, is not a sufficient ground to imply a covenant which would tend to balance advantages thus preponderating." Furthermore, if the conveyance is only of the grantors' right, title, and interest in the land, the scope of it is...