Real v. Hollister

• Decision Date: 12 August 1885
• Citation: Real v. Hollister, 17 Neb. 661, 24 N.W. 333 (Neb. 1885)
• Parties: ELLEN REAL AND P. S. REAL, PLAINTIFFS IN ERROR, v. JOHN A. HOLLISTER, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

24 N.W. 333

17 Neb. 661

ELLEN REAL AND P. S. REAL, PLAINTIFFS IN ERROR, v. JOHN A. HOLLISTER, DEFENDANT IN ERROR

Supreme Court of Nebraska

August 12, 1885

ERROR to the district court for Fillmore county. Tried below before MORRIS, J.

AFFIRMED.

John P Maule and Marquett, Deweese & Hall, for plaintiffs in error.

Brown & Ryan Bros., for defendant in error.

OPINION

REESE, J.

The original action in this cause was founded upon the covenants of warranty contained in a warranty deed dated February 25 1875, executed by plaintiffs in error to one Michael Real, the grantor of defendant in error. The defendant in error was evicted by a paramount title, and brought suit upon the covenants of the deed to Michael Real, alleging that the covenants contained in the deed run with the land, inured to his benefit, and were broken. Judgment was rendered in his favor in the district court, and the defendants in that action bring the cause into this court for review by proceeding in error. The questions presented will be noticed in their order.

It is contended by plaintiffs in error that the proof fails to show they were in possession of the land conveyed at the time the deed in question was executed, and it having been adjudicated that they had no title to the real estate, therefore the covenants were broken at the time of the execution of the deed, and became a mere chose in action, not running with the land, and hence not assignable by Michael Real to defendant in error. The testimony introduced upon the trial upon the question of the possession of plaintiffs in error was not of the most satisfactory character. The plaintiffs in error introduced no testimony. It is shown by testimony offered by defendant in error that the land was originally conveyed by patent from the United States to one Linas Clapp, under the provisions of the homestead laws. Clapp being in possession conveyed it to R. P. Walker, who took possession and soon afterward sold it to plaintiff in error, Ellen Real. She held it but a short time when she, with her husband, conveyed to Michael Real, her deed being the one on which this action was founded.

The land was a farm, forty acres of which were under cultivation, and while it is not shown directly that plaintiffs in error were ever in actual physical possession themselves, yet we think there was enough to show that the possession was theirs though held under them by another. There was no adverse claimant on the farm. The title of Mrs. Real was not questioned, and her possession by those occupying it not disputed. The trial court was justified by the evidence in finding with defendants in error upon this question of fact. Indeed we do not see how it could have found otherwise. The deed from plaintiffs in error to Michael Real contains the usual covenants found in warranty deeds in common use in this state, viz., of seizure, against incumbrances, right to convey, and of general warranty. This being true, it is clear that so far as this deed is concerned the covenant of warranty would run with the land and inure to the benefit of a subsequent grantee. But it is claimed that the covenant of title did not inure to the benefit of defendant in error for the reason that the deed from Michael Real to him merely conveyed the interest of Michael Real, and that this deed being without covenants of any kind, and containing no assignment of any kind, except the transfer of his naked title, defendant in error took nothing but such title as Michael had. The deed here referred to was dated June 24th, 1879. On the 14th day of February, 1880, Michael Real executed another deed to defendant in error for the same property, with full covenants. But it is insisted that this deed conveyed nothing, as the former deed had divested Michael of his title. The first deed is more than a quit-claim, and yet not such a warranty deed as is in common use in this state. It is the form used for warranty deed in Indiana, and perhaps in other states where by statute it is made sufficient as such. It is as follows:

"WARRANTY DEED.

"The grantors, Michael Real and Elizabeth Real, his wife, of the town of Milo and county of Bureau, in the state of Illinois, for and in consideration of one thousand dollars in hand paid, convey and warrant to John A. Hollister, of the county of Fillmore and state of Nebraska, the following described real estate, to-wit;" followed by a description of the land and a release of homestead rights, etc.

While this deed may not be such an one as under the law of this state would amount to a deed of full covenants of warranty, yet it shows upon its face to have been an effort to make a warranty deed, and would thus be so closely connected with the deed executed February 14, 1880, as to remove all doubt as to the intention of the grantors at the time of its execution, and to give the grantee the full benefit of the warranties contained in both. This being, in our view, beyond question, the conveyance from Michael Real to defendant in error must be treated as one of full covenants of title which run with the land.

The covenant of warranty is said to be the most effective of the covenants in American deeds, and in some of the states the only one in general use. Leary v. Durham, 4 Ga. 593. Dickinson v. Hoomes, 49 Va. 353, 8 Gratt. 353. It runs with the land and passes with the fee to any subsequent grantee of the same title. Rindskopf v. Farmers' Loan and Trust Co., 58 Barb. 36. White v. Whitney, 3 Metc. (Mass.) 81. Lawrence v. Senter, 4 Sneed 52. Moore v. Merrill, 17 N.H. 75. Le Ra De Chaumont v. Forsythe, 2 Pen. & W. 507. And the last vendee with warranty may therefore maintain an action for a breach of the covenant against the first or any other warrantor. Lawrence v. Senter, supra. Kane v. Sanger, 14 Johns. 89. Withy v. Mumford, 5 Cow. 137. Claycomb v. Munger, 51 Ill. 373. We therefore conclude that plaintiffs in error are liable to defendant in error upon the covenants in their deed to Michael Real.

It is claimed that as the proof shows that P. S. Real never at any time owned the land, it being held alone by Ellen Real, his wife, he is not liable to plaintiff in error; that the covenant of title so far as it affected him was broken at the time the deed was executed, and therefore it did not run with the land...