Russ v. Alpaugh

• Decision Date: 25 September 1875
• Citation: 118 Mass. 369
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George W. Russ & others v. Abram M. Alpaugh

118 Mass. 369

George W. Russ & others v. Abram M. Alpaugh

Supreme Court of Massachusetts

September 25, 1875

Norfolk. Writ of entry by George W. Russ, Caroline E. Newcomb and Susannah S. Young, the heirs at law of Caroline Newcomb deceased, intestate, to recover a lot of land in Quincy. Plea, nul disseisin. The case was submitted to the judgment of the Superior Court, and of this court on appeal, upon the following facts:

In 1845, Jonathan Baxter, being seised and possessed of the demanded premises, together with other lands in Quincy, died intestate, leaving as his heirs at law five children, among them a daughter Caroline, (under whom the demandants claimed,) then married to James Newcomb. A division of his estate was effected by agreement among his heirs, and the demanded premises were included in the portion allotted to and accepted as her share by the daughter Caroline; and the other four heirs executed a quitclaim deed to James Newcomb her husband, of all their right, title, interest and estate in the demanded premises, describing them, dated April 23 1846, and duly acknowledged and recorded, for a nominal consideration of $ 690.50; but in fact James Newcomb paid no consideration whatever for that release, and the real consideration for the same was the execution by said Caroline of several release, to the other four heirs, of all her right, title, interest and estate in the other lands of which her father had died seised and possessed as aforesaid, which by the said agreement among his heirs, had been severally allotted to and accepted by them for their shares of his estate.

On August 10, 1857, James Newcomb conveyed the demanded premises by deed of warranty to George Newcomb, who conveyed the same by quitclaim deed of the same date to Caroline, wife of James Newcomb. Each of these deeds was duly acknowledged, and recorded on September 3, 1857, and was expressed to be for pecuniary consideration; but in fact no consideration was received by James Newcomb for this conveyance of the demanded premises to his wife through George Newcomb.

On January 8, 1858, Caroline Newcomb died, never having made any conveyance of the demanded premises, or of any interest therein, and leaving her husband surviving her, and the demandants, her children and only heirs at law. The demandants, Caroline E. Newcomb and Susannah S. Young, are children of Caroline Newcomb by her said husband, James Newcomb, and the demandant Russ is a child of Caroline Newcomb by a former husband.

On January 20, 1858, James Newcomb, being in possession of the demanded premises as tenant by the curtesy, executed a mortgage, which was duly acknowledged and recorded, (under a foreclosure of which and various mesne conveyances, none of which are in controversy, the tenant claims title,) of other lands by metes and bounds: "And also all the right, title, interest or estate in and to a certain piece or parcel of land lying in Quincy, and bounded," as therein described, (being the demanded premises,) "the same being a part of the homestead estate of Jonathan Baxter, late of Quincy, deceased, as divided and set off by Lemuel Humphrey, Esq., of Weymouth, on Monday, the 20th day of April, 1846, containing four acres, be the same more or less, with all the privileges and appurtenances thereto belonging, intending hereby to convey all the title or estate in the said premises which was conveyed or passed to me, the grantor, by the deed of Jonathan Baxter and others, recorded with Norfolk deeds, lib. 163, fol. 307," (being the quitclaim deed to him from the heirs of Jonathan Baxter above mentioned,) with full covenants of warranty.

On February 15, 1870, James Newcomb, having in the mean time married again, died, leaving a widow surviving him, and as his heirs at law the said Caroline E. Newcomb and Susannah S. Young, daughters by said Caroline Newcomb, and two other children by other wives, and leaving assets of equal value at that time with the demanded premises, which descended to his said heirs, subject to the widow's dower.

The case was argued in January, 1875, and reargued in March, 1875.

Judgment for the demandants.

L. S. Dabney, for the demandants.

J. Q. Adams & B. Adams, for the tenant.

OPINION

Gray, C. J.

It was admitted at the argument that the tenant had no defence as against the demandant Russ, he not being an heir of James Newcomb, under whom the tenant claims title. In order to make out the defence against those of the demandants who are Newcomb's heirs, it is necessary to maintain that the covenants in his mortgage deed are not limited to the right, title and interest which he had at the time of its execution, being only a tenancy by the curtesy, but extend to the title in fee which had been conveyed to him by the heirs of Baxter, and which he had since conveyed away before the execution of the mortgage; and also that those covenants, upon the facts of this case, prevent his heirs from asserting the title which had previously descended to them by inheritance from their mother.

The mortgage deed from James Newcomb, not being limited to the right, title and interest which the grantor had at the time of its execution, but expressly declared to be intended to convey all the title or estate in the described premises which was conveyed or passed to him by the deed of Jonathan Baxter and others in 1845, we are inclined to think that the covenants of warranty must be held to be coextensive with the grant and to include the title in fee conveyed to him by the deed referred to. Allen v. Holton, 20 Pick. 458. Hubbard v. Apthorp, 3 Cush. 419.

But it is unnecessary to express a decisive opinion upon that point, because we are of opinion that, even upon that construction, there is nothing in the deed of James Newcomb, which can bar, estop or rebut those of the demandants who are his heirs from asserting their title by inheritance from their mother.

If it has any such effect, it must be either, 1st, by the application of the English law of collateral warranty; or 2d, by estoppel; or 3d, by way of rebutter and to avoid circuity of action.

The case is in substance this: When the real estate of the wife's father was divided among his heirs, a conveyance in fee by the other heirs, of their interest in the land allotted to their sister, was made to her husband; and he afterwards conveyed the land to a third person, who immediately reconveyed it to the wife. She died, and her estate in the land descended to her heirs, subject to her husband's tenancy by the curtesy. He then, having only a life estate, made a conveyance of the land in fee, with full covenants of warranty, under which the tenant claims; and afterwards died, leaving assets of equal value, which descended to four children, two of whom were children by his said wife and are demandants in this action, and the other two were children by other wives, so that the former have taken assets by descent from him equal in value to half of the premises.

1. At common law, a conveyance of land with warranty bound the grantor and his heirs to warrant the title to the lands granted, and, either upon voucher, or upon judgment upon a writ of warrantia chartae, in case of eviction of the grantee, to yield him other lands of equal value. Co. Lit. 365 a. The warranty was lineal, when the title asserted by the heir was derived, or might by possibility have been derived, from the warranting ancestor; and collateral, when it neither was nor could have been derived from him. In both lineal and collateral warranty, the heir was bound to yield other lands, in case of eviction, only if and so far as he had other lands by descent from the warrantor. 2 Bl. Com. 301, 302. But the remedy to recover specifically other lands of equal value has never been adopted in this Commonwealth. Marston v. Hobbs, 2 Mass. 433, 438.

A lineal warranty estopped the heir to assert title to the lands warranted, although he took no other lands by descent; for to allow him to recover the lands warranted would allow him to take those lands by descent, contrary to his ancestor's warranty; and the common law (by a rule, the justice of which is not apparent) held him equally barred and estopped in the case of a collateral warranty, upon the mere presumption that he might hereafter take assets by descent from or through the same ancestor. 2 Bl. Com. 302.

The St. of Gloucester, 6 Edw. I. (1278) c. 3, remedied this injustice in one class of collateral warranties, by providing that the warranty of the father should not bar the son, who was the heir of both parents, from claiming the land in the right of his mother, except so far as assets descended to him from his father. 2 Inst. 292. Sym's case, 8 Co. 51 a, 52 b. 4 Dane Ab. 494.

The St. De Donis, 13 Edw. I. (1285) Westm. 2d, c. 1, which created estates tail, provided that the tenant in tail should have no power to aliene the estate. Under this statute, it was held, by analogy to, or, as Lord Coke says, "by the equity of" the St. of Gloucester, that a warranty by the tenant in tail barred the heir when he inherited other assets of equal value from the warrantor, but not otherwise. Co. Lit. 373 b, & Butler's note 328. 2 Inst. 293. But it was also held that, as the object and effect of the St. De Donis were merely to protect heirs in tail, therefore, as against the remainderman or reversioner, the warranty of the tenant in tail, being a collateral warranty, not of the class defined in the statute of Gloucester, was a bar, even without proof of other assets. Co. Lit. 373 a, 374 b, 375 a. Vin. Ab. Voucher U. b. 3, pl. 25.

By the St. of 4 & 5 Anne (1705) c. 16, § 21, all warranties by any tenant for life were declared to be void as against those in remainder or reversion; and all collateral...