Musgrove v. Cordova Coal, Land & Improvement Co.

• Decision Date: 17 December 1914
• Docket Number: 744
• Parties: MUSGROVE v. CORDOVA COAL, LAND & IMPROVEMENT CO.
• Court: Alabama Supreme Court

67 So. 582

191 Ala. 419

MUSGROVE v. CORDOVA COAL, LAND & IMPROVEMENT CO.

No. 744

Supreme Court of Alabama

December 17, 1914

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by the Cordova Coal, Land & Improvement Company against L.B Musgrove. From a judgment for plaintiff, defendant appeals. Affirmed.

Lacy &amp Lacy, of Jasper, for appellant.

Bankhead & Bankhead and F.A. Gamble, all of Jasper, for appellee.

SAYRE J.

This action was brought in 1911 by appellee against appellant, to recover damages for the breach of a covenant of general warranty of title to land. About 15 years before the suit was brought defendant had sold the land described in the complaint to plaintiff's predecessor in title, Fred Sloss, trustee, executing a deed purporting to convey the entire fee and containing this warranty:

"We will, and our heirs, executors and administrators shall, defend the same to the said Fred Sloss, trustee, his successor or successors, heirs, executors, and assign forever against the lawful claims of all persons whomsoever."

At that time there was an undivided one-fifth interest in the minerals in, under, or upon the land outstanding in one Copeland, and shortly before this action was commenced the heirs of said Copeland, who had died in the meantime, laid claim to this interest, whereupon plaintiff, recognizing the validity of their claim, purchased the same from them. Plaintiff has declared as for a breach of the covenant quoted above.

This covenant, in substance and effect, is the same as a covenant for possession and quiet enjoyment. Its obligation is, not that the covenantor is the true owner, or that he is seised in fee with the right to convey, but that he will defend and protect the covenantee against the rightful claims of all persons that may be thereafter asserted. It is not broken therefore, so long as possession and enjoyment are not interfered with. Oliver v. Bush, 125 Ala. 534, 27 So. 923; Caldwell v. Kirkpatrick, 6 Ala. 60, 40 Am.Dec. 36; Green v. Irving, 54 Miss. 450, 28 Am.Rep. 360. It operates in futuro, unless the true owner is in actual possession at the time the covenant is entered into, in which case there is a breach eo instanti; it runs with the land, that is, it is intended for the benefit of the ultimate grantee in whose time it is broken, and there can be no breach except by an actual or constructive eviction. Prestwood v. McGowin, 128 Ala. 267, 29 So. 386, 86 Am.St.Rep. 136. These principles are of common statement in the authorities.

It does not appear that defendant was ever in the actual possession of the premises, or that there has been any actual possession since the time of his conveyance to plaintiff's predecessor in title. The parties so treat the case, and inferences to be drawn from the record justify that treatment as proper. On the basis of the fact that there has been nothing more than a constructive possession of the premises by any of the parties to this suit or the transaction out of which it has arisen, defendant (appellant) makes an argument which seems to us to come to this: That since plaintiff and Copeland--so for convenience by this one name to designate the persons who have owned the outstanding interest--have in law and fact all along been tenants in common, each holding constructive possession for the benefit of the other, there has not been nor could be any constructive eviction of one by the other.

"An eviction, according to all the best authorities, means some change in the possession of the party [covenantee or his successors in interest] by the disturbance of an actual or constructive possession, which has been displaced by a

...