Thomas v. Bland

• Decision Date: 06 December 1890
• Citation: 91 Ky. 1,14 S.W. 955
• Parties: THOMAS v. BLAND.
• Court: Kentucky Court of Appeals

14 S.W. 955

91 Ky. 1

THOMAS v. BLAND.

Court of Appeals of Kentucky.

December 6, 1890

Appeal from circuit court, Nelson county.

"To be officially reported."

Nat W Halstead and John D. Wickliffe, for appellant.

John A Fulton and C. T. Atkinson, for appellee.

BENNETT J.

The appellee, as the purchaser at decretal sale of the tract of land that the appellant sold to N. R. Stiles, with covenant of warranty of title, said land having been sold at said decretal sale as the property of N. R. Stiles, instituted this action, on the appellant's covenant of warranty to said Stiles, to recover damages for the loss of said land by eviction after said purchase at decretal sale, under a paramount adverse title. The first question that the appellant makes is that appellee cannot recover on said covenant of warranty, because his purchase at decretal sale was without warranty of title; therefore he is not in privity with the appellant's covenant of warranty to said Stiles and cannot recover on the same. This is error. A covenant of warranty of title runs with the land, to which the vendee looks as security against any defect in the title, and which is transmitted to each successive purchaser; and the fact that a purchaser with this covenant sells the land to another person without his covenant of warranty does not restrict the latter's right, as far as the previous warranty is concerned, to his immediate vendor. If the immediate vendor has a covenant of warranty, as it runs with the land, it is included in the sale of his title, notwithstanding the fact that he declines to warrant the title thus conveyed. This covenant of warranty is not conveyed by a succeeding covenant of warranty, but by the words of conveyance; and any word that conveys the title, conveys the warranty that the vendor holds, because, as said, it runs with the land, and is transmitted by the conveyance. See Cummins v. Kennedy, 3 Litt. 121; Young v. Triplett, 5 Litt. 248; Hunt v. Orwig, 17 B. Mon. 58; Perkins v. Coleman, ante, 640. It is true that the purchaser of land at decretal sale does not acquire a title with covenant of general warranty, but he does acquire all the title that the owner has, and the covenant of warranty runs with this title, which is included in the sale of it. As said, the title is passed by words of conveyance, and not by the covenant of warranty. The latter runs with the title, and is passed to the vendee by the words of conveyance, and not by the covenant of warranty; and, as all of Stiles' title was sold at decretal sale, the covenant of warranty passed with the sale.

To the former action to recover damages for a breach of this covenant, a demurrer was sustained by the lower court, which decision was affirmed by this court, upon the distinct ground that the petition was defective, and the action was dismissed. 3 S.W. 595. Thereafter this action was instituted which, by additional allegations, cured the objection to the former action, and said allegations present a cause of action. But the appellant contends that, the former action having been dismissed upon demurrer, said dismissal bars another action for the same cause. It is true that a judgment sustaining a demurrer to a petition,...