Post v. Campau
Decision Date | 30 October 1879 |
Citation | 42 Mich. 90,3 N.W. 272 |
Court | Michigan Supreme Court |
Parties | HOYT POST and others, Administrators, v. DANIEL J. CAMPAU. |
December 16, 1866, C. gave his deed of certain property, covenanting therein that he had not theretofore done, committed, or wittingly suffered to be done or committed, any act, matter or thing whatsoever whereby the premises granted, or any part thereof, is, are, or shall or may be charged encumbered in title or estate, or otherwise. Held, by a majority of the court, such covenant was special, looking to the future, and promising indemnity for damages that might in the future result from a present breach. At the time of making such covenant C.'s interest in the land had been sold on execution, an attempt to redeem therefrom being ineffectual the title thereto was, after several years of litigation continued at C.'s request, adjudged to have passed under such sale. The covenantee having purchased such outstanding title, Held, also, by a majority of the court, that he was entitled to recover the amount paid as money paid to C.'s use. Cooley, J., is of the opinion that upon such covenant a right of action accrues when substantial damage is suffered from an encumbrance existing at the time of making such covenant, and that the statute of limitations does not run from the time of the mere technical breach at the time of entering into the covenant, for which, perhaps, merely nominal damages might be recoverable.
Error to Wayne.
Wilkinson, Post & Wilkinson, for plaintiffs in error.
Moore & Moore, for defendant in error.
The claim upon which the defendant in error recovered judgment against the estate of Theodore J. Campau, in the circuit court, was for damages for the breach of a covenant against encumbrances. The deed containing the covenant bears date December 19, 1866, and was made to defendant in error by Theodore J. Campau and a number of others, who severally owned undivided interests in the land. The only covenant in the deed was the following: "And the said parties of the first part, for themselves, heirs, executors and administrators, do covenant, grant, bargain and agree to and with the said party of the second part, his heirs and assigns, that they, the said parties of the first part, have not heretofore done, committed, or wittingly suffered to be done or committed, any act, matter or thing whatsoever whereby the premises hereby granted, or any part thereof, is are or shall or may be, charged, encumbered in title or estate, or otherwise."
It appears that on the twenty-sixth day of March, 1866, the interest of Theodore J. Campau in the lands described in the deed, which was an undivided one-ninth, had been sold on execution and bid in by Godfrey, Dean & Brow plaintiffs in a judgment against him, and that Theodore failed to redeem from this sale, though he made an ineffectual attempt to do so. The title under the execution sale passed by transfer to Milton H. Butler, who in 1872 brought suit in ejectment to recover possession, and after some five years of closely contested litigation, which was defended by Daniel at the request of Theodore, the plaintiff recovered judgment. When the litigation was concluded, Daniel bought up the title of Butler, paying therefor over $7,000, which was about one-ninth the value of the whole land at the time the deed to Daniel was given.
Theodore J. Campau died intestate in 1875, and letters of administration were issued on his estate on the thirtieth day of April of that year. Commissioners were appointed to hear and report upon claims against the estate, and they made their report before the Butler litigation was closed. The claimant, after purchasing from Butler, petitioned the probate court that the commission be revived for the hearing of this claim, and August 18, 1878, the prayer of his petition was granted. The claim was then presented to and heard by the commissioners, who disallowed it, and the claimant then appealed to the circuit court. In that court he had judgment in his favor.
From the foregoing statement of facts it appears that the interest of Theodore J. Campau, in the lands conveyed to the claimant was, at the time of conveyance, encumbered by the execution sale, the right to redeem from which had not then expired. It is not disputed that this created a liability against Theodore on his covenant. It is contended, however, that his covenant was broken as soon as made, and that the remedy to recover damages for the breach was lost by the failure to institute suit, or to present the claim within the time limited by statute.
Under the statute a suit upon covenant must be brought within ten years after the right accrues. Comp.L. � 7154. A special provision is made for the case of a party dying before the time has expired, (Comp.L. � 7157,) but it would not affect the present suit. The ten years from the delivery of the deed was fully complete and ended before the petition was presented for the revival of the commission to hear this claim, and no exception to the statutory bar can relieve this case, if the right of action is to be deemed to have accrued at the giving of the deed. If this were a case of first impression, there would seem to be no difficulty in disposing of it in a way that wonld do justice between the parties.
As the terms of the covenant sued upon were falsified by facts existing at the time, a technical breach may be said to have then taken place; but as no damage followed from this breach until the claimant purchased from Butler, more than ten years afterwards, the rule that the claimant's right of action shall be deemed to have arisen at the delivery of the deed involves this manifest absurdity, that the claimant's remedy was barred before he was damnified--a result that can scarcely be consistent with any just or proper rule of law.
It is commonly said that a covenant against encumbrances is broken when made, if ever, (Smith v. Lloyd, 29 Mich. 382;) and this is true in the sense that the promise always relates to an existing condition of things, and is falsified then if it ever is. But, if the damage do not then result, it is misleading and mischievous to treat this mere technical breach as constituting the plaintiff's cause of action.
If all encumbrances were the same in nature, and might be got rid of at the pleasure of the owner of the property encumbered, there would be no difficulty and no wrong in applying to all the same rule. But anything is an encumbrance which constitutes a burden upon the title; a right of way, ( Clark v. Swift, 3 Met. 392;) a condition which may work a forfeiture of the estate, ( Jenks v. Ward, 4 Met. 412;) a right to take off timber, (Cathcart v. Brown, 5 Pa.St. 317;) a right of dower, whether assigned or unassigned, (Russells v. Webber, 59 Me. 488.) In short, "every right to or interest in the land, to the diminution of the value of the land, but consistent with the passage of the fee by the conveyance." Prescott v. Insman, 4 Mass. 627, 630.
Some of these are permanent in their nature, and incapable of being removed at the option of the covenantee. They permanently reduce the value of the title conveyed, and this as much at the time of the conveyance as at any future time; and it is therefore reasonable to hold that the covenant against...
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