Pevey v. Jones

• Decision Date: 19 February 1894
• Court: Mississippi Supreme Court
• Parties: B. R. PEVEY ET AL. v. M. O. JONES ET AL

16 So. 252

71 Miss. 647

B. R. PEVEY ET AL. v. M. O. JONES ET AL

Supreme Court of Mississippi

February 19, 1894

October 1893

FROM the circuit court of Copiah county. HON. J. B. CHRISMAN Judge.

On December 20, 1881, appellees sold and conveyed to appellants by warranty deed, certain land in Lawrence county, Miss. In 1890 the purchasers learned that a part of the land belonged to the United States. There was testimony to show that they were never in actual possession of such part, but had paid taxes thereon several years. On March 22, 1893, this suit was brought by them to recover of appellees, on the covenant of warranty, the purchase-money paid for said land, with interest. There was a judgment by default in the justice court, and defendants appealed to the circuit court, where the case was tried without a jury. The defendants pleaded the general issue and the statute of limitations of six years. Judgment for defendants; motion for new trial overruled, and defendants appeal.

Affirmed.

P. Z Jones, for appellants.

1. It is true that the mere existence of an outstanding paramount title is not sufficient to constitute an eviction. But, as the statute of limitations does not run against the United States, and any one exercising ownership over the land owned by the government is a trespasser, in a case like this the vendee is not required to stand his ground. In all cases where the court has held an actual eviction necessary to constitute a breach of warranty, it was possible that the vendee, by continuing in possession, might acquire a perfect title by limitation, in this case, appellants, learning that the title was in the government, voluntarily surrendered all claim, and an eviction by judicial process was not necessary. A surrender of possession to one holding the paramount title is sufficient. Dyer v. Britton, 53 Miss. 270.

2. In an action for a breach of covenant to warrant and defend, the statute of limitations is not a defense, because such covenant runs with the land. On this point, see Watkins v. Gregory, 69 Miss. 469; Wilder v. Davenport, 58 Vt. 642; 4 Am. & Eng. Enc. L., title Covenants.

Willing & Ramsey, for appellees.

1. Judgment was properly rendered for defendants. The mere existence of a paramount hostile title does not constitute a breach of the covenant of warranty. Kirkpatrick v. Miller, 50 Miss. 521; Dyer v. Britton, 53 Ib., 270; Green v. Irving, 54 Ib., 450; Scott v. Kirkendall, 30 Am. R., 562, s.c. 88 Ill. 465; 3 Washb. on Real Prop. , 398. The covenantee must be disturbed in the possession, actually or constructively. He must be evicted, or there must be something equivalent thereto. In the case of Glenn v. Thistle, 23 Miss. 42, it was held that a sale of lands belonging to the United States was such a hostile assertion of the paramount title as was tantamount to eviction, but there was no sale in this case.

2. If plaintiffs had a right of action off the...