Wead v. Larkin

• Decision Date: 30 September 1870
• Citation: 1870 WL 6365,54 Ill. 489,5 Am.Rep. 149
• Parties: HEZEKIAH M. WEADv.JOSHUA LARKIN et al.
• Court: Illinois Supreme Court

54 Ill. 489

1870 WL 6365 (Ill.)

5 Am.Rep. 149

HEZEKIAH M. WEAD

v.JOSHUA LARKIN et al.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding. This was an action of covenant, brought by Joshua Larkin and others against George F. Harding and Hezekiah M. Wead. The declaration alleges the breach of a covenant of warranty contained in a deed of conveyance, executed by the defendants to Curtis Worden and Albert Worden, and that the father of the plaintiffs, by conveyance from those grantees, became the assignee of their title, and of the covenant of warranty, and that the plaintiffs succeeded to the same rights by the death of their father.

The form of the covenant counted on is as follows: “And we, the said George F. Harding and H. M. Wead, for ourselves and our heirs, do covenant to and with the said Curtis Worden and Albert Worden, their heirs and assigns, that we will forever warrant and defend the title to said tract of land against all patent titles whatever, and against none other.”

A trial resulted in a finding and judgment in favor of the plaintiffs. The case is brought to this court by appeal.

The appellant contends that the action will not lie, because, at the time they executed the deed containing the covenant sued upon, the covenantors were not in actual possession of the land, and had no estate in it of any kind, and therefore the covenant did not run with the land, and the grantee of the immediate covenantee can not sue.

Mr. J. L. BENNETT, for the appellant.

The appellant had neither title nor possession, at the date of his deed to Wordens. Hence the covenant in that deed is a naked covenant with Wordens, which, like any other chose in action, is not assignable, and did not pass to the plaintiffs as his assignees.

It is believed that no authority holding a contrary doctrine can be found, but this principle is as well settled as any in jurisprudence.

In Slater and another v. Rawson, 1 Metcalf, 456, the question in this case came up and was decided for the defendant. The court say: “to support an action by an assignee on the covenant of warranty, it is necessary that the warrantor should have been seized of the land; for, by a conveyance without such seizin, the grantee acquires no estate, and has no power to transfer to a subsequent purchaser the covenants in his deed; because, as no estate passes, there is no land to which the covenants can attach.”

To the same effect is the very well considered case of Nesbit v. Nesbit et al. Exrs. 1 Taylor's (N. C.) Conf. R. p. 403, where the authorities are cited and the principle defended against the argument of hardship and inconvenience (p. 410). It will be noted that in the case at bar it is true, as in this case, that the plaintiffs themselves show that the paramount title was out of the warrantors, in a third party, thus putting themselves out of court.

To the same effect are the following cases, cited in 1 Taylor, viz: Noke v. Awder, Cro. Eliz. 373, 476; Webb v. Russell, 3 Term R. 393.

Kent lays down the doctrine thus, viz: covenants “can not be separated from the land and transferred without, but they go with the land, as being annexed to the estate, and bind the parties in respect to privity of estate.” 4 Kent's Com. 471, note B. 3 Ed.

The same principle is supported by the series of authorities that hold, that where the grantor and warrantor has possession at the date of his deed, that possession is an estate in the land, which, by his grant, passes to his grantees, and from them, by intermediate conveyances, will pass to their grantees, with the covenant of warranty annexed. Slater v. Rawson, 6 Metc. 443-7; Moore v. Merrill, 17 N. H. 81; Beddoe's Exr. v. Wadsworth, 21 Wend. 120; Wilson v. Widenham, 51 Maine, 566; Fowler v. Poling, 2 Barb. 306; Same v. Same, 6 Barb. 166.

The principle is also recognized by SPENCER, Justice, in Greenby v. Wilcocks, 2 Johns. 1, where he says: “It is objected that the plaintiffs can not recover on the covenants of seizin, and that the grantee had power to convey, because it is alleged in the declaration that there was a total defect of title in the defendant at the time he executed the deed, and that the covenants then broken could not be assigned over to the first grantee. There is great force in this objection, and it appears to me to be conclusive. Choses in action are incapable of assignment at common law; and what can distinguish these covenants, broken the moment they are made, from an ordinary chose in action. The covenants, it is true, are such as run with the land, but here the substratum fails, for there was no land whereof the defendant was seized, and of consequence none that he could alien. The covenants are, therefore, naked ones, uncoupled with a right to the soil.”

The same doctrine is recognized by Chief Justice PARSONS, in Marston v. Hobbs, 2 Mass. R. 433, where he says: “It is clear that an action for the breach of these covenants (of seizin and power to convey) can not be maintained by an assignee of the purchaser, because no estate passed to which these covenants could be be annexed.”

The same doctrine is implied in the general doctrine of Spencer's case, 5 Co. 176, viz: that the assignee, by reason of privity of estate, is entitled to the benefit of all covenants running with the land.

Being merely accessories to the estate, they can not pass by a deed that, for want of an estate upon which to operate, is ineffectual as a conveyance. See, also, as a case directly in point, Andrew v. Pearce, 4 Bos. and Pul. 158. There the estate had determined before the assignment, and it was held, that the covenant running with the land ceased to be assignable by the determination of the estate, and that the assignee could maintain no action upon it.

This doctrine is also stated as settled law in Martin, Admr. v. Gordon, 24 Geo. 535; opinion of BENNING, Judge.

And in Beardsley v. Knight, 4 Vt. 471, it is held, that an action of covenant could not be maintained at all by one to whom the land did not pass, by reason of a want of a seal to the instrument of conveyance.

See, also, the general principle recognized in Administrators of Backus v. McCoy, 3 Ham. Ohio, 221, and in Randolph's Administrators v. Kinney, 3 Randolph, 396, where the court say: “But here, the land not passing, the warranty could not pass.”

The doctrine upon which these cases are based was also recognized in Whittier v. Peacock, 3 Bing. N. C. 411; Paugeter v. Harris, 7 C. B. 708; Green v. James, 6 Mees. & Welsby, 656; Allen v. Walley, 1 Blackford, 249; Bartholomew v. Condee, 14 Pick. 167.

Messrs. GOUDY & CHANDLER, for the appellees.

We do not controvert the position that, at common law, it was necessary that the warrantor should have been seized of the land, in order to support an action by the assignee on the covenant of warranty. The doctrine seems to have been recognized by the English authorities and by the courts of some of the States, though we conceive the rule to be founded upon weak reasoning. To say that the covenant does not run with the land, because the covenantor had no land to which it could attach, when he purported to convey land, and covenanted with his grantee and his assignees that he did own the land, seems to us to be absurd. The covenantor ought to be estopped by his deed and covenants from denying his seizin. He should not be allowed to say to his covenantees (for he covenants with the grantees' heirs and assigns as well as with the grantees), my covenant with you is broken, but because it is broken I am not liable.

How extensively this doctrine has been recognized as law, by the courts of the United States, we do not think it worth while to consider, as it is immaterial in this case.

All the authorities concur in establishing, that possession in the covenantor constitutes a sufficient estate to satisfy the technical common law rule, and to pass the covenant to an assignee. We refer to the cases cited by appellant. Slater v. Rawson, 6 M. & C. 443, et seq.

The statute of conveyances of Illinois, sec. 4, declares, that “any person claiming right or title to lands, tenements or hereditaments, although he, she or they may be out of possession, and notwithstanding there may be an adverse possession thereof, may sell, convey and transfer his or her interest in and to the same in as full and complete a manner as if he or she were in the actual possession of the lands and premises intended to be conveyed; and the grantee or grantees shall have the same right of action for the recovery thereof, and shall, in all respects, derive the same benefit and advantage therefrom, as if the grantor or grantors had been in the actual possession at the time of executing the conveyance.”

By another section, livery of seizin is abolished.

At common law, livery of seizin was indispensable to vest the title in the grantee.

The two sections of our statute above referred to, were passed to avoid the evils growing out of this rule, one of which was the very thing for which appellant contends. Livery of seizin required possession in the grantor to pass the title, and, therefore, without possession, he could make no conveyance effectual to pass the title, and could not confer upon his grantee any estate; that is, he had no land to which the covenants could technically attach, and his covenant became a naked one. But it was held, that if he had possession, though no title, he could pass something in the nature of an estate to which the covenant would attach. The forgoing sections of our statute, then, provide that the same results shall flow from the act of the grantor, as to the effect of his deed, as if he were in possession, and his deed should be treated, and be effectual, as though he were in possession.

The fourth section of the conveyance act of the State of Missouri, is the same in substance as the fourth section of our act, and has received a...