Wiggins v. Pender
| Decision Date | 12 May 1903 |
| Citation | 44 S.E. 362,132 N.C. 628 |
| Parties | WIGGINS v. PENDER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Edgecombe County; Winston, Judge.
Action by J. H. Wiggins against James Pender, as administrator of John Armstrong, deceased, and others. From a judgment in favor of plaintiff, defendants appeal. Modified.
The statute of limitations does not commence to run against an action for breach of a covenant of title until after eviction.
This action was brought to recover damages for the breach of a covenant of warranty, and was heard in the court below upon the following statement of facts agreed upon by the parties:
On the 18th day of December, 1876, John Armstrong, the intestate of the defendant Pender, executed to Preston Justice and D. R H. Justice a deed for a certain tract of land lying in said state and county for the recited consideration of $850. That the said deed contained the following covenant, to wit "And the said John Armstrong and wife, Margaret covenant that they are seised of said premises in fee, and have the right to convey the same in fee simple; that the same are free from all incumbrances; and that they will warrant and defend the said title to the same against the claims of all persons whomsoever." On the same day the said Preston and D. R H. Justice reconveyed the said premises to the said John Armstrong by deed of mortgage to secure the purchase price, in fee, with all rights, privileges, and appurtenances thereto belonging, with usual power of sale in the event of default. That in the said deed of mortgage to the said Armstrong the said Justice warranted the title to the said land in fee simple for themselves, their heirs and assigns, to the said Armstrong, his heirs and assigns. The said land was thereafter sold under said mortgage in a foreclosure proceeding under order of the court, and the same was conveyed in fee simple by the commissioner of the court to the ancestor of the plaintiff, "with all privileges and appurtenances thereto belonging, to him, his heirs and assigns," without covenants of warranty; and thereafter said land was allotted and set apart to the plaintiff in the division of his father's estate. At April term, 1901, of the superior court, A. L. Parrish and wife, Maggie, brought their action against the above-named plaintiff to recover from him the possession of said land and the rents and profits thereof. That the said Maggie claimed said land by virtue of a deed by John Armstrong and wife prior in date to his deed to the said Justices, and in said action it was adjudged that the said Maggie Parrish was entitled to recover the possession of the land and the rents and profits thereof, for that the said Armstrong had only a life estate in the land at the date of his deed to the Justices. That the plaintiff was evicted and ousted from said land under and by virtue of said judgment, and has since brought this suit, and paid to the said Maggie the sum of $250.44 as rents and profits of the land, and paid the further sum of $18 costs of said action. That $100 was a reasonable attorney's fee for defending said action against the plaintiff. John Armstrong died in July, 1885, and on the 10th day of July, 1885, Margaret Armstrong duly qualified as his administratrix, and the said Margaret died in 1892, and thereafter, to wit, on May 6, 1901, James Pender duly qualified as administrator de bonis non of said John Armstrong. The plaintiff brought this action on May 6, 1901. Maggie Parrish died in the spring of 1902, leaving a will, and one child, and on the 27th of October, 1902, A. L. Parrish qualified as executor of the will and as guardian of the child. It is agreed that the amount of damage which the court shall consider in the plaintiff's recovery, if the court be of the opinion that he is entitled on these facts to recover the same, is $850, the purchase price of the land, and the sum of $218.99, being the rent, profits, and costs up to April 15, 1901, when judgment was recovered against the plaintiff as above stated, and he was ousted, and the interest on $1,068.99 from said date, and the further sum of $50, paid as rent since said judgment, with interest thereon from December 5, 1901, and the further sum of $100, reasonable attorney's fees, paid by the plaintiff in defending the title to the land in said suit.
Judgment was rendered for the plaintiff against the defendant James Pender, as administrator, alone, for the sum of $1,166.99, with interest on $1,068.99 from April 15, 1901, and costs, from which judgment the defendant appealed.
The following are the contentions of the defendant as appears from the case agreed: (1) That the plaintiff was not the assignee of the covenants contained in the deed from John Armstrong to Preston and D. R. H. Justice, and cannot maintain this action for the breach of same. (2) That the covenants contained in said deed were extinguished by the reconveyance of said land to John Armstrong by the said Preston and D. R. H. Justice, and no right of action accrued thereon to the plaintiff. (3) That any cause of action arising upon the covenants in said deed is barred by the statute of limitations pleaded in the answer. (4) That it does not appear from the "agreed statement of facts" that A. L. Parrish and wife recovered said land of the plaintiffs by reason of a paramount title. (5) That neither the costs nor attorney's fees incurred by the plaintiff in the suit of A. L. Parrish and wife should be included in the damages, for that no notice was given the defendant to defend said action. (6) That on the facts agreed the plaintiff is not entitled to recover.
The plaintiff also contended in his brief that it does not appear from the agreed facts that any real assets descended to the heirs of Armstrong.
Gilliam & Gilliam, for appellants.
John L. Bridgers and G. M. T. Fountain, for appellee.
WALKER, J. (after stating the case).
The argument in this case was confined to the first contention of the defendant, namely, that the plaintiff is not the assignee of the covenant contained in the deed from Armstrong to the Justices, as the covenant does not contain the word "assigns," and he cannot, therefore, maintain this action for a breach of the same. This important question was discussed with much learning and ability, but the other exceptions were not argued by counsel, though they were not abandoned, and it is, therefore, our duty to consider and decide them in connection with the exception just mentioned.
It is a mistake to suppose that the modern covenant for title is to be construed by the same rigid rule as the ancient warranty. The latter never existed in this state, and in England, by statute of 3 & 4 Wm. IV, the effect of warranty in tolling a right of entry was taken away, and the writs of warrantia chartae--when the warrantee was impleaded in an assize, and a voucher or vouchee to warranty in a real action, by the help of which the party wishing to obtain the protection of the warranty might have defended himself or received lands of equal value in place of those he had lost--were abolished, so that the warranty of real estate, which had long been disused, has no practical operation; and, indeed, we are told by Blackstone that the covenant in modern practice entirely superseded it. 2 Sharswood's Blackstone, 303, and notes.
The defendant's counsel relied on the case of Smith v Ingram, 130 N.C. 100, 40 S.E. 984, but it will be seen by reference to Coke that in the passage quoted in that case, viz., "If a man doth warrant land to another without this word 'heirs,' his heirs shall not vouch; and, regularly, if he warrant land to a man and his heirs without naming assigns, his assignee shall not vouch," he referred to the ancient warranty, for in the very next passage he says, "But note, there is a diversity between a warranty that is a covenant real, which bindeth the party to yield land or tenements in recompense, and the covenant annexed to the land, which is to yield but damages, for that a covenant is in many cases extended further than the warranty." Coke, 384b. He further says that, even though the assignee is a stranger to the covenant--that is, not a privy in contract--he can, nevertheless, have an action on the covenant for a breach, because the covenant runs with the land. Coke, 385a. And so it was resolved in Spencer's Case that: ...
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