Morrow v. Baird

• Decision Date: 28 January 1905
• Parties: MORROW v. BAIRD.
• Court: Tennessee Supreme Court

86 S.W. 1079

MORROW v. BAIRD.

Supreme Court of Tennessee.

January 28, 1905.

Appeal from Chancery Court, Davidson County; John Allison, Chancellor.

Action by T. D. Morrow against A. E. Baird. From an order sustaining a demurrer to and dismissing complainant's bill, he appeals. Reversed.

Geo. E. Banks, T. A. Embrey, and W. H. Williamson, for appellant. Zarecor & Turley, for appellee.

McALISTER, J.

This is a bill by an intermediate vendor of land against his immediate grantor for breach of covenant of title. A demurrer was interposed on behalf of the defendant, which was sustained by the chancellor, and complainant's bill dismissed. The cause is before this court on appeal of the complainant, assigning the action of the chancellor in dismissing his bill as error.

Complainant, Morrow, alleges in his bill that on the 22d day of June, 1888, he purchased of defendant, Baird, for the consideration of $5,000, a tract of land in Franklin county, Tenn., estimated to contain 5,000 acres. Baird executed to Morrow a deed, which was duly acknowledged and recorded in the register's office of Franklin county. The deed contained a covenant to warrant and defend the title to the tract of land to complainant, his heirs and assigns, against the lawful claims of all persons whomsoever.

On the 12th day of July, 1894, complainant, Morrow, sold the land to John T. Long. and covenanted in his deed to warrant the title to the same. On the 28th of October, 1897, while John T. Long was in possession of said land, Albert H. Sears filed a bill in the chancery court of Franklin county enjoining the said John T. Long from entering upon or cutting the timber on 219 acres of said land. The bill alleges that said suit was prosecuted to a final decree, and that Sears recovered of Long 219 acres of the tract of land which complainant, Morrow, had purchased from defendant, Baird, and which complainant, Morrow, had conveyed by warranty deed to the said Long.

It is further alleged in the bill that one Isaac Gray, while said Long was in possession of the land, filed a bill against him in the chancery court of Franklin county, seeking to recover 450 acres of land which had been conveyed by the complainant, Morrow, to the said Long, and that upon Gray showing superior title to the land claimed by him the said Long, complainant's vendee, purchased from said Gray the 450 acres at the price of $450, and was also forced to pay the costs of Gray against Long, the money being paid on June 8, 1898, viz., $450 for the said 450 acres of land, plus $17.40, the costs of the cause.

It is further alleged that thereafter, on the 4th day of March, 1899, complainant's vendee, Long, filed a bill in the chancery court of Franklin county enjoining complainant, Morrow, from proceeding to collect the purchase money notes which had been executed by Long to complainant, Morrow, for the land which the latter had sold to the former. Complainant, Morrow, answered said bill and filed a cross-bill seeking to collect from Long the purchase-money notes which Long had executed to him. In that case on the final hearing Long recovered of complainant, Morrow, the price which he had agreed to pay for the 450 and 219 acres lost by the superior title of Sears and Gray, respectively.

The allegations of the bill, when laid in a narrow compass, are that on the 28th day of June, 1888, Baird sold and conveyed the land in controversy by warranty deed to the complainant, Morrow. The latter, on the 12th of July, 1894, by warranty deed, sold and conveyed the land to John T. Long. In October, 1897, one Albert H. Sears established by a bill in equity a superior title to 219 acres of this land, and Long was thereby forced to pay the real owner the value of the land so recovered. Subsequently one Isaac Gray brought suit against Long to recover 450 acres of the land so conveyed, and upon his showing a superior title Long purchased his interest. Morrow was then forced to reimburse Long for the land he had lost on account of the superior titles of Sears and Gray. Morrow now sues Baird, his vendor, for breach of warranty of title, and to recover the money so paid to Long. As already stated, a demurrer to this bill was interposed on behalf of the defendant Baird, assigning for cause:

(1) That the bill shows the breach of covenant for which suit is brought was in the time of complainant's vendee, John T. Long, and complainant cannot therefore maintain this action.

(2) It does not appear from the bill that complainant, Morrow, had discharged his liability to his vendee, Long.

(3) Defendant demurs to so much and such parts of the bill as seek to recover for the 450 acres of land alleged to have been lost upon eviction by paramount title.

The chancellor sustained the demurrer, and dismissed the complainant's bill, as already stated. Complainant appealed, and has assigned errors. The cause is heard directly by this court without the intervention of the Court of Chancery Appeals, under a new rule, which excludes from the assignments of equity causes to the Court of Chancery Appeals all cases standing on bill and demurrer.

The first assignment is that the chancellor erred (1) in holding that an evicted grantor cannot recover for a breach of covenant warranty, notwithstanding the fact that he, before bringing the suit, discharged his liability to his grantee; (2) in holding that an action cannot be maintained upon a covenant of general warranty to recover damages accruing on account of an eviction by paramount title; (3) in holding that complainant had not discharged his liability to his vendee.

The main contention presented by the demurrer is that the right of action for the breach of warranty of title is in the grantee during whose time the breach occurred, and that it is not competent for an intermediate grantee who has aliened the land to maintain the action.

The question presented is one of first impression in this state, so far as any reported opinion of this court shows. The industry of counsel and our own examination has failed to find any adjudication by this court on the precise question here presented.

The doctrine is well settled in this state that covenant of general warranty of title runs with the land, and consequently any subsequent vendee who is evicted may sue for the breach. Hopkins v. Lane, 9 Yerg. 79; Kenney v. Norton, 10 Heisk. 384; Mette v. Dow, 9 Lea, 96.

In Kenney v. Norton, supra, it was said that when one purchases land and receives a conveyance for the same he thereby becomes assignee by virtue of the conveyance merely of the warranty of title contained in the deed to his vendor, and that he may sue for breach thereof, whether made to such...