Richard v. Silas Bent.

• Decision Date: 30 June 1871
• Citation: 1871 WL 7970,14 Am.Rep. 1,59 Ill. 38
• Parties: AUGUST RICHARDv.SILAS BENT.
• Court: Illinois Supreme Court

59 Ill. 38

1871 WL 7970 (Ill.)

14 Am.Rep. 1

AUGUST RICHARD

v.SILAS BENT.

Supreme Court of Illinois.

June Term, 1871.

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

This was an action of covenant, commenced June 18, 1869, by Silas Bent against August Richard, to the October term, 1869, of the St. Clair Circuit Court.The declaration alleges that defendant, on the 20th of September, 1867, by his deed of that date, conveyed to one Elisha P. Freeman, of the city of St. Louis, and State of Missouri, a certain tract of land lying in the said city of St. Louis; that in and by said deed defendant covenanted with said Freeman, that said premises were free from all incumbrances, and that defendant would warrant and defend the title and possession of said real estate to said Freeman, his heirs and assigns, against the claim of any person whomsoever, against said premises; that on the 23d of September, 1867, said Freeman conveyed said premises to the plaintiff; that said Freeman, immediately after making the said conveyance to the plaintiff, took the benefit of the bankrupt law, and became, and still is, totally insolvent; that at the time of executing said deed by defendant to said Freeman, said premises were not free from all incumbrances, nor could plaintiff, as assignee of said Freeman, lawfully possess or quietly enjoy said premises free from all incumbrances; that defendant has not warranted and defended said premises to the plaintiff, &c; that defendant has not protected plaintiff, &c., but that, on the contrary, at the time of date, sealing, &c., the taxes for the years 1867 and 1868 were a lien upon said real estate, and according to the laws of the State of Missouri, the taxes for both of said years were at the date, &c., of said deed to said Freeman, legally chargeable to defendant; that, on the 21st of October, 1868, said real estate was sold by the proper revenue officer for $141.22, being the amount of the State, county, &c., taxes for the year 1867, to one F. C. Koenig; that in order to prevent the title to said real estate from passing into said Koenig, plaintiff was legally compelled to, and did, on June 15, 1869, pay the said Koenig the sum of $290 to redeem said real estate from said tax sale; that, in order to protect the title to said real estate, and prevent the same from passing from the plaintiff, he did, on the 15th of June, 1869, pay to the proper revenue officer of said St. Louis county, $129.39, the same being the amount of the State, county, and school taxes for 1868; that he has paid, to protect his title and possession, the sum of $419.39, and concludes, that defendant has not kept his covenants, but has broken the same, to plaintiff's damage of $500.A trial by the court resulted in a judgment for the plaintiff, from which the defendant appeals.

Messrs. KASE & WILDERMAN, for the appellant.

Mr. JAMES M. DILL, for the appellee.

Mr. JUSTICE SHELDONdelivered the opinion of the Court:

The question made on the present record is, whether this action lies by a remote grantee against a remote grantor, upon the covenant against incumbrances in the deed of the latter, it being in this form: “that the said lands are free from all incumbrances.”

The position taken by the appellant is, that this covenant is in the present tense; that there was a breach of it as soon as the deed was executed by the defendant to Freeman, the covenantee; that a right of action for the breach of the covenant immediately accrued in favor of Freeman; that this right of action was a chose in action, and, like all other choses in action, could not be so assigned as to enable the assignee to bring an action in his own name; that an assignee can not sue upon a breach of contract that happened before his time.

And the weight of American authority is undoubtedly in favor of the position, that the covenant against incumbrances, in the form of the one in question, being broken, if at all, at the instant of its creation, is thereby turned into a mere right of action, which is not assignable at law, which can be taken advantage of only by the covenantee or his personal representatives, and can neither pass to an heir, a devisee, nor a subsequent purchaser.And it is the same with the covenants of seizin and right to convey, they also being covenants in præsenti, and broken, if at all, when the deed is delivered.But English decisions hold a contrary rule, as well as those of some of the States.

The question, can an executrix sue for a breach of the covenant of seizin, without showing some special damage to have accrued to the testator, came before the court of King's Bench, in 1813, and was decided in the negative.

Bayley, Justice, said that the testator might have sued in his lifetime, but having forborne to sue, the covenant real, and the right of suit thereon, devolved, with the estate, upon the heir.Kingdon v. Nottle,1 M. & Selw. 355.

The case of King v. Jones,5 Taunt. 418, involved the same principle.The grantor covenanted with the grantee and his heirs, to do all lawful and reasonable acts for further assurance, upon request.The request was afterwards made by the grantee and refused by the grantor.The grantee died, not having sued for the breach, and not having been evicted.His heir, who was the party evicted, brought a suit for the breach of covenant, and the court sustained it.The covenantee, it was said, paid his purchase money, relying on the vendor's covenant; he required him to perform it, but gave time, and did not sue him instantaneously for his neglect, but waited for the event.It was wise so to do, until the ultimate damage was sustained, for otherwise he could not have recovered the whole value; the ultimate damage, then, not having been sustained in the time of the ancestor, the action remained to the heir (who represents the ancestor in respect of land, as the executor does in respect of personalty), in preference to the executor.And this judgment was affirmed on writ of error to the King's Bench.Jones v. King,4 Maule & Selw. 188.The covenant being one for further assurance on request, the technical breach of it occurred upon the refusal to execute the further assurance on request, and the case presents the same question as that arising on the covenant of seizin.

The case first cited, Kingdon v. Nottle, came up again, when the same plaintiff sued as devisee of the covenantee, on the covenant of seizin.

It was argued that the covenant was broken as soon as made, and therefore no right of action passed to the devisee.The Chief Justice, in that case says: Here the covenant passes with the land to the devisee, and has been broken in the time of the devisee, for so long as the defendant has not a good title, there is a continuing breach, and it is not like the covenant to do an act of solitary performance, which, not being done, the covenant is broken once for all, but is in the nature of a covenant to do a thing toties quoties, as the exigency of the case may require.Here, according to the letter, there was a breach in the testator's lifetime; but, according to the spirit, the substantial breach is in the time of the devisee, for she has thereby lost the fruit of the covenant in not being able to dispose of the estate.Kingdon v. Nottle,4 M. & Selw. 53.

With regard to such breaches of real covenants as occurred in the lifetime of the ancestor, but occasioned him no actual damage, or, after his death, the action should be...