Mygatt v. Coe

• Decision Date: 10 April 1894
• Citation: Mygatt v. Coe, 142 N.Y. 78, 36 N.E. 870 (N.Y. 1894)
• Court: New York Court of Appeals Court of Appeals
• Parties: SARAH M. MYGATT et al., as Surviving Trustees, etc., Appellants, v. GEORGE S. COE, Respondent.

142 N.Y. 78

36 N.E. 870

MYGATT et al.

v.COE.

Court of Appeals of New York.

April 10, 1894.

Appeal from supreme court, general term, first department.

Action by Sarah M. Mygatt and Angeline E. Darling against George S. Coe for breach of covenant.From a judgment of the general term (20 N. Y. Supp. 748) affirming the circuit court's judgment for defendant, plaintiffs appeal.Reversed.

Edward M. Grout and C. P. Buckley, for appellants.

Wm. S. Cogswell and L. B. Bunnell, for respondent.

FINCH, J.

It is our duty to follow and abide by the decision of the second division of this court made in the case at bar when it was before them on appeal, so far as the facts found, and the questions determined, are identical.Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y. 465, 32 N. E. 1058;Cluff v. Day, 141 N. Y. 580, 36 N. E. 182.Reserving freedom of thought and action when the case becomes a precedent, only, we must here and now, in the same action between the same parties, accept without criticism what has been decided.It is claimed, however, that upon the last trial new evidence and new findings have totally changed the situation, and introduced questions not previously considered or decided, and that the plaintiffs may now succeed without in the least impugning or contradicting the prior determination.It is to such inquiry that our attention should be principally directed, and it may usefully be preceded by an examination of the points which must be deemed to have been involved in the prior decision.

Our brethren of the second division disagreed among themselves (Mygatt v. Coe, 124 N. Y. 212, 26 N. E. 611), as was not strange, in view of the fact that the question brought to their judgment a judicial quarrel almost as venerable as the common law itself, and open yet to vigorous dispute (Rawle, Cov.[5th Ed.] § 203, note 2).The majority of the court held that privity of estate is essential to carry covenants of warranty to subsequent grantees so as to support a right of action by them against the original covenantor whenever evicted by a title paramount to his; that a covenant of warranty made by one having neither title nor possession, and so no estate in the land, will not run with it into the hands of subsequent grantees, but will stop where the privity of contract ends, and so at the first or original covenantee; and that the covenant of Coe, the husband, upon which this action is founded, was that of a stranger to the title,-an independent and collateral warrantor,-having and transferring no estate in the land, and so in no sense or degree a privy in estate with the subsequent grantees.The point of the decision is emphasized, and made clear, by the dissent of the minority.They advocated the doctrine that privity of estate is not always essential to carry the covenant down the line of successive grantees, and that one who conveyed nothing, but covenanted much, like the prior of the convent who promised perpetual song to the manor chapel, might find his covenant attached to the land, and running with it into the hands, and for the benefit, of successive owners.But, while holding and defending this doctrine, Judge Bradley, who wrote the dissenting opinion, did not press the point, or rely upon it as the ground of ultimate decision, but insisted that Coe, the covenantor, was not a stranger to the title, because he joined with his wife as a grantor, and assumed to unite with her in transterring to Mrs. Fisher the estate which actually passed.The precise point of disagreement was thus over the attitude and position of the husband in making the conveyance; and the decisive question became whether he did or did not transfer an estate,-some estate,-to which his covenant could attach, and run with it down the line of transfer.The facts which dictated the conclusion of the majority are carefully stated in the opinion of Judge Follett, who expressed their views.He adverted to the circumstance that the deed from Coe and his wife was not spread upon the record, and might contain something not fully or accurately described in the findings.These, however, showed that the land was conveyed to Mrs. Coe by a deed from an assumed owner, running to her severally, and in her own individual right, and that, while her husband did join with her in the conveyance to Mrs. Fisher. their covenant of seisin was, not that he was seised or that they were seised, but that she was seised of a full estate in the land.While the joint grant indicated title in the two, and some estate in each, as the minority claimed, the form of the joint covenant asserted seisin in the wife alone, which the majority took for the truth.To such last inference the prevailing opinion awarded a predominant force, for several expressed reasons.One was that the proof and the findings failed to show any possession in Coe, beyond a mere occupancy by the sufferance of his wife, or any transfer of possession by him to Mrs. Fisher.The words of the opinion are these: ‘The defendant having no estate, title, or interest in, or possession of, the land conveyed, there could be no privity of estate between him and Nancy Fisher.’A second reason was that it did not appear that Coe received any part of the consideration paid by the grantee.The language of the opinion, in this respect, is: ‘And it was conceded on the argument in this court that it does not appear whether the defendant received the whole or any part of the consideration of the deed.’It is thus obvious that the inference of neither title nor possession in Coe, the husband, drawn from the form of the covenant of seisin, was allowed to prevail because no other fact in the record necessarily contradicted it.

But now three such facts make their appearance in the findings, and force from us a different inference.Referring to the deed from Coe and his wife to Mre.Fisher, the tenth finding of fact is as follows: ‘That, when the said conveyance was so made and delivered, the defendant was in possession of the said real property, consisting of a plot of land with a dwelling house thereon, being there domiciled and residing with his family.’And the eleventh finding is: ‘That, upon the execution and delivery of the said conveyance, the defendant moved out of the said premises, and surrendered the same to the said grantee, who thereupon went into possession of the same.’We do not and cannot know upon what proof or upon what facts these findings were based, for none of the evidence given is contained in the record.We are obliged to assume that sufficient and competent proof produced them, and that they are, in all respects, strictly true.Nor can we narrow or modify them by recurring to the form of the covenant and of the deed running to Mrs. Coe alone.At best, these only raised certain presumptions, but presumptions existing from the absence of any contrary facts.Coe's covenant that his wife was seised justified the presumption that he had no possession, and the maxim that ‘possession follows the deed’ is expressive only of the presumption which the law raises when there is no proof of the actual facts.Frantz v. Ireland, 66 Barb. 389.But these presumptions give way before the proven truth.They fall when the facts themselves are shown, and we cannot indulge a presumption that Coe was not in possession, in the face of a finding that he was, or that he did not transfer the possession to Mrs. Fisher, when the explicit finding is that he did.I tried for a time, in my reflections, to think that the learned trial judge may have used the word ‘possession’ in the improper but harmless sense of occupation, but swiftly saw that I had no warrant to change his words, and that there could be no doubt that he used them carefully,...