Tillotson v. Prichard
| Decision Date | 12 June 1888 |
| Citation | 14 A. 302,60 Vt. 94 |
| Parties | DANIEL TILLOTSON v. GEORGE PRICHARD |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1887 [Copyrighted Material Omitted]
Judgment reversed and cause remanded.
Farnham & Chamberlain and Barrett & Barrett, for the plaintiff.
The defendant, George Prichard, conveyed the land in question to Daniel F. Tillotson and Henry Dame, by deed containing the usual covenants, dated the 4th day of June, 1866; by subsequent deeds of conveyance the interest of Dame passed to Tillotson, and the latter, on the 18th day of May, 1882, conveyed the premises to the plaintiff.
I. At the time Prichard conveyed the premises to Tillotson and Dame, he did not hold the legal title to them, nor did he have possession of the same, unless the payment of taxes constituted possession. The payment of taxes is not an act of possession, and is not evidence of a possessory title. Reed v. Field, 15 Vt. 672. Prichard therefore, at the time of his deed, had neither title nor possession.
II. After the conveyance of the land by Prichard to Tillotson and Dame, the latter entered into actual possession of the premises, and they and their grantees in the chain of title continued in possession until the plaintiff was evicted in December, 1882, by Reed, Sherwood and Knight, under an elder and better title. This action is covenant, the original declaration counting upon the covenants of seisin and right to convey. The court permitted an amendment declaring upon the covenant of warranty. The defendant claims that the court had no power to permit the amendment, which is true, if it introduced a new cause of action. Was the cause of action, introduced by the amendment a new one, or a different description of the cause originally declared upon? The original declaration says that the defendant hath not kept his covenants, for that he was not lawfully seized and had not good right to sell and convey the premises, and for that Reed and others were the lawful owners and hath evicted the plaintiff and driven him from the possession of said land. The amended declaration adds the fact that the defendant hath not warranted the said premises and for the same reasons alleged in the original declaration. Where the original declaration counted upon the covenant against incumbrances, it was held by this court that an amendment adding a count upon the covenant of warranty was properly allowed. Boyd v. Bartlett, 36 Vt. 9. This case justified the ruling of the court below, and we think is correct in principle. The defendant insists there was error for the reason that the amendment was not permitted until after the evidence had been heard by the referee. It has been many times held that judgment should be entered upon the report of a referee, whenever, without changing the nature of the action, the declaration or pleadings could be so amended, as to accommodate them to the facts found by the referee. Rob. Dig. Tit. Reference, I, sub. div. 5, 6, and cases cited. We think under this rule the time when the declaration was amended was immaterial.
III. The plaintiff claims to recover upon the covenant of warranty only. This covenant is one of those that run with the land, and is intended for the benefit of the ultimate grantee in whose time it is broken. Williams v. Wetherbee, 1 Aik. 233. Until breach, the covenant passes with the estate by purchase and can be enforced when broken, by the covenantee or his representatives, or, if the estate has been assigned, by the assignee of the covenantee, who claims under the seisin vested in him. Rawle on Cov. s. 213. The covenant attached to a grant does not pass by the deed from the covenantee to his assignee, but only by the land conveyed. It passes not by the form of the conveyance, but merely as an incident to the land; so when the grantee takes no estate under the grant, no assignment of the land by him can transfer it to the assignee. As it is not capable of a direct transfer, so as to enable the assignee to maintain an action for its breach in his own name, it cannot pass by the operation of the assignment, for it cannot run with the land which the grantee does not have to convey. And this doctrine, Rawle in his work on Covenants says, prevails generally throughout the United States. In 1 Smith's Leading Cases, 183 in the notes to Spencer's Case, 5 Coke, 16, it is stated that in England when nothing but bare possession of the land passes by the conveyance, the covenant does not pass, either by the direct or indirect operation of the assignment. But the tendency of the American cases is to hold that possession is a sufficient estate to cause the covenant to attach to the land, and upon an assignment or transfer of the land by the covenantee to pass to the assignee. Rawle on Cov. s. 233. Possession is an estate that in time may ripen into a perfect title. The defendant's counsel insist that it was necessary that the covenantor, Prichard, should have had possession, that possession in the covenantees was not sufficient to attach the covenant to the land, and that it could not be made to attach by any possession of the covenantees taken by them subsequently to the grant. The referee finds that Tillotson and Dame took actual possession of the premises under their deed from Prichard. The covenant of warranty was of force in their hands by privity of contract, and when they sold the land having taken possession of it under their deed, the covenant attached to the land and passed with it to the grantee. The first time the question whether the covenant passes, as attached to the land, can arise, is, when the covenantee assigns the estate; and if he then has possession of the land, holding it under his deed, why does not the covenant pass with the land? To so hold does no injustice to the covenantor. He is only called upon to make good his covenant.
It is said a grantor may be liable to his grantee in an action for a breach of the covenant of seisin, and to an assignee of the grantee upon that of warranty. Concede this to be true, the court can properly protect the rights of the defendant in either case, by attaching such appendages to the judgment, or, staying the execution, as will prevent injustice in any event whatever; as was done in Catlin v. Hurlburt, 3 Vt. 403. In that case the plaintiff had conveyed the land to Lynde Catlin, and then brought his action on the covenant of seisin. The court giving judgment for the plaintiff ordered stay of execution until the plaintiff procured from Lynde Catlin and lodged with the clerk for the benefit of the defendant, either a quit-claim deed of the premises, or a suitable discharge of the covenant of warranty contained in the defendant's deed to the plaintiff. And see Blake v. Burnham, 29 Vt. 437. In case the defendant apprehends any danger from a second action, he can apply to the court, at the time of final judgment, for such orders in respect thereto, as he thinks he is entitled to. Can it be in any manner consistently claimed that the land in question with the covenant did not pass to the plaintiff by virtue of the deed from the defendant? Can he say it is not his deed? He conveyed the land, his grantees took possession of it and conveyed it to the plaintiff. And is not their possession, tortious though it may be against the lawful owner, derived from and under the deed from the grantor? And if so, why did not the covenant pass to them with the possession? We think the covenant passed, as attached to the estate, when the grantees having taken possession under their deed conveyed the premises to the plaintiff. Rawle on Cov. s. 233; Beddoe v. Wadsworth, 21 Wend. 120; Wead v. Larkin, 54 Ill. 489; Allen v. Kennedy, 91 Mo. 324; Fields v. Squires, 9 F. Cas. 29, 1 Deady 366.
It may be well, in this connection, to refer to the precedents of the declarations in actions in this State, for the breach of the covenants of warranty. In Williams v Wetherbee, supra, the premises had come to the plaintiff through several mesne conveyances, and after the allegation of the conveyance to the plaintiff it is alleged "whereby the plaintiff became seized and possessed of the premises," it being nowhere alleged that the defendant or any of the prior assignees had ever been in possession of the premises. It was argued under the demurrer to the pleas that the declaration itself was defective in that it did not allege that the plaintiff entered into possession of the premises and was evicted; but the court held that the allegation "whereby he became possessed, etc.," was a sufficient allegation of the possession. In Beardsley v. Knight, 4 Vt. 471, after setting forth the execution by the defendant of the deed containing the covenant, and the assignment of the land to the plaintiff by Hatch, the covenantee, it is alleged that Beardsley, the plaintiff, and assignee of the covenant, entered into possession of the premises, without any allegation that Beardsley the covenantor, or Hatch the covenantee, was ever in possession of the same. In Wilder v. Davenport's Estate, 58 Vt. 642, an action for the breach of the covenant of warranty in favor of an assignee of the covenant, Davenport, when his deed was given, was not in possession of, and had no title to, the land. He deeded, with covenant of...
To continue reading
Request your trial