Rector v. Waugh

• Citation: 17 Mo. 13
• Parties: LYDIA AND THOMAS RECTOR, Plaintiffs in Error, v. WAUGH, Defendant in Error.
• Decision Date: 31 October 1852
• Court: United States State Supreme Court of Missouri

17 Mo. 13

LYDIA AND THOMAS RECTOR, Plaintiffs in Error,

v.WAUGH, Defendant in Error.

Supreme Court of Missouri.

October Term, 1852.

1. The remedy by the ancient warranty real of the common law never had any practical existence in the United States; and the principles which were applied to it, having their origin in the feudal system, are not applicable to the covenant of warranty used in our system of conveyancing.

2. The common law implied no warranty, when partition was made between joint tenants and tenants in common. The doctrine, which makes an outstanding title bought in by one joint tenant or tenant in common, enure to the benefit of his co-tenants, is one of equitable cognizance, and courts of equity mould and apply it, so as to do justice among the tenants.

3. At common law, conveyances between tenants in common cannot operate by way of release, but must contain words of perpetuity to pass a fee. If one tenant in common conveys to another by a deed with warranty containing no such words, the warranty becomes extinct by the death of the grantee, and any after acquired title of the grantor does not, by virtue of it, enure to the heirs of the grantee.

Error to Marion Circuit Court.

The opinion of the court contains a sufficient statement of the facts.Glover & Campbell and Buckner, for plaintiffs in error.

1. The deeds of partition read in evidence were in the proper legal form to consummate a full and perfect partition between joint tenants or tenants in common. 4 Kent, 6, 7, 8, 364, 369. 4 M. & S. 178. 10 J. R. 456. 18 ib. 79. Chitty's Blackstone, book 2, page 324. A mere release in such cases being the proper form to pass a fee simple estate, the warranty thereto annexed is a warranty of such an estate. 2. Those deeds, therefore, forever estopped the grantors from denying that the title passed by them. It was a universal principle at common law, that a conveyance, no matter of what form, with general warranty, concluded and estopped the grantor to the extent of the estate conveyed. 2 Thomas' Coke, top page, 347 (1 Am. from last Lond. ed.) notes (1) and (2). Ib. 288, 290, 293. Shep. Touch. 181-2. 3 Taunt. 90. 4 M. & S. 178. 1 Salk. 276. Strange, 818. 3 T. R. 441. 2 Saund. 38 a, note 4. 2 Rep. part 3, 58, Lincoln college case. Ib. part 4, 121, Bustard's case. 2 Rep. part 3, pp. 59 and 63. 1 ib. 67, Archer's case. Ib. 136, Chudleigh's case. Chitty's Black. book 2, 301-2-3-4. The same doctrine has been recognized in this country. 6 Watts, 63. 2 S. & R. 507. 14 Mass. 243. 10 Met. 192. 17 Mass. 249. 3 Pick. 52. 24 Pick. 324. 15 Mass. 307. 7 Greenl. 97. 8 Ohio, 226.11 ib. 235. 3 ib. 116. 2 Humph. 386. 1 Sum. 263. 1 Peck, 24. 3 Leigh, 376. 9 Cranch, 52. 4 Dana, 251, 129. 14 Johns. 224. 4 Bibb, 436. 12 Johns. 207.11 ib. 91. 4 Dev. & Bat. 54. 5 Pike, 693. 7 Conn. 214. 9 Wheat. 455. 10 Mo. 434. 29 Me. Rep. 183. 30 ib. 539. 3. The power of attorney from Thompson Bird to Bates was sufficient to authorize the latter to insert covenants of warranty in the deeds. 3 T. R. top p. 414. 15 East, 45. 21 Wend. 279. 2 Camp. 555. 1 J. J. Marsh. 291. 1 Ala. (new series,) 446. 1 Wash. C. C. R. 455. 15 Verm. 160. 2 McLean, 549. 6 Hill, 337. 8 Mass. 181. 4. It is objected that the deeds were not formally executed in the name of Thompson Bird as grantor; that the signature should have been “Thompson Bird, by Moses D. Bates, agent.” The answer to this is, that the “proprietors” are stated to be the granting parties. Bird was shown to have been one of those proprietors. Id certum est quod potest certum reddi. 8 J. R. 385. 2 N. H. 310. Story on Agency, 183. 10 N. H. 470. 7 ib. 475. 3 Dana, 237. 5. Even if there was any defect in the power or its execution, the deeds of partition were subsequently ratified by Thompson Bird by implication. Express ratification is not necessary. 1 Liv. on Agency, 44-5. 2 Greenl. 359. 2 Bos. & P. 301. 12 Wend. 525. 4 Pet. 83.4 Binney, 231. 8 Cow. 586. 6. It is said that, as all parties to the partition lost the title which they divided among themselves, the mutual obligations which they held neutralized and destroyed each other, so that neither had a cause of action against the other. No such principle is known to the law; but even if there were, the warranty does not derive its conclusive power from any cause of action it is supposed to give, but from its effect to seal the lips of the maker to aver any thing against it. 7 Mass. 21, 291. 8 Ohio, 226. 15 ib. 409. 4 Bibb, 436. 9 Cranch, 52. 9 Wheat. 455. 4 Dev. & Bat. 54. 2 Humph. 383. 7. The amount of consideration is wholly immaterial. 8 Mass. 200. 8. Even if it were conceded that Bates had no power to insert the express covenant of warranty, every partition implies and has annexed to it a warranty in law. 2 Thomas' Coke (same ed. above cited), top pp. 527, 298, 300.1 ib. 819, (K.) note 68, 838-9 and note T. 1 Shep. Touch. 185. 3 ib. 467. 11 Pick. 311. 3 Dana, 321. 3 John. 331. 4 Bibb, 355. 2 Sumn. 522. 5 Johns. 388. 3 Greenl. 214. As between tenants in common, a purchase of an outstanding title by one enures in equity to all: an equity in this case entitles the plaintiffs to recover. See R. C. 1845, tit. Ejectment, section 13. 11 Mo. 437. An implied warranty at common law created an estoppel. 1 Touch. 203. Ib. 183, 40, 46-7. 2 Coke, top p. 288, note A. 3 Dana, 321. 3 John. 331. 3 Harr. (Del.) Rep. 103. 4 Kent, 260. Archer's case, 1 Rep. 67. 9. It is well settled that an estoppel will sustain an ejectment. 4 Kent, 98. 11 Ohio, 478. 2 Dev. 177.10. The defendant being a mere trespasser cannot set up an outstanding title in Bird, Bates and Rector, when they would not be allowed to set it up themselves.

Abiel Leonard, for defendant in error. The plaintiffs rest their title upon two propositions. 1. That a conveyance of land with warranty has the effect at common law of passing all the after acquired estate of the grantor. 2. That upon this principle, the deed of 1819, from Bird and others to the plaintiff's ancestor, passed to him all their after acquired title to the lot in controversy. The defendant controverts both propositions.

I. As to the first, it is admitted that it is sustained by the decisions in Massachusetts and several other states, and these decisions are expressly put upon the old common law doctrine of rebutter incident to a real warranty. Somes v. Skinner, 3 Pick. Rep. 58. Pike v. Galvin, 29 Me. Rep. 183, where the American cases are all collected. It is denied, however, that this Massachusetts doctrine is part of the English common law, and the two following observations are submitted in support of this position: 1. The personal covenant of warranty used in the American system of conveyancing is not identical with the warranty real of the common law, and there is, therefore, no legal propriety in imputing to the former the effect that the ancient common law imputed to the latter. 2. If, however, the personal warranty is to be considered identical in its operation with the real warranty of the ancient law, yet the effect of passing an after acquired estate in all cases was never imputed by that law to the real warranty. The effect of a real warranty was to oblige the warrantor to defend the estate to which it was annexed; and it was used either for defence or redress. For defence, when the attack came from the direction of the grantor; and this was called a rebutter and sometimes an estoppel. For redress, when the attack came from a stranger, either on voucher, or warranty of charter to recover a recompense in land of equal value. 2 Black. Com. 300-303. Two circumstances, however, were essential to enable the warranty to operate by way of rebutter, or in other words, to constitute the warranty a bar: 1. The estate to be barred must have been divested or turned to a right at the time or before the warranty was made. 1 Shep. Touch. 186-188. Lord Seymour's case, 10 Rep. 96. 2 Thomas' Coke, 537. Roll v. Osborn, Hobart's Rep. 20. 2. The estate to be protected by the rebutter or estoppel must have been a continuing estate at the time it sought the protection of the warranty. Same authorities cited above. 2 Greenleaf's Cruise, tit. 32, chap. 25, secs. 12-14. Cases will illustrate these rules. In the old law, there were estates without rights, and rights without estates. When a throne is usurped, there is a sovereign de facto, and a king without a kingdom. When a freeholder was turned out of his freehold by disseisin, and his place usurped by a stranger, a wrongful freehold, an estate de facto was created, and the lawful estate was displaced or turned to a right. The case put in Coke, 265, a, in the very passage usually cited in support of the new doctrine, is of a father and son. The father is disseised, and the son releases to the disseisor with warranty; then the father dies; the land descends to the son, and this after acquired estate is barred by the warranty, or in other words, is transmitted from the son to his grantee by the previous conveyance with warranty. Here the estate barred is turned to a right by the disseisin at the time of the warranty, and the estate protected by the warranty is in being when the right to the land descends upon the son. If either had been otherwise, the warranty would not have barred, or in modern language, the after acquired estate would not have passed. The case from the Year Books, 17 Edw. III., cited in 31 vol. Law Lib. 458, and Seymour's case, 10 Rep. 96, prove both these propositions. The case of Hutchinson v. Prestwidge, 4 M. & S. does not conflict with any thing here said. There the lease and release of the tenant in tail produced a discontinuance of the estate tail, and turning that estate to a right (Co. Litt. 330, a,) made it capable of being rebutted. Doe v. Oliver, 2 Smith's Lead. Cases, note of Am. editor, in which the cases upon this subject are collected. The case of Right v. Bucknell is reported in 2 B. & A. 278 (22 Eng. Com. Law Rep. 73). If this view of the law be correct, it is manifest...