Worley v. Hineman

• Decision Date: 16 February 1893
• Citation: 6 Ind.App. 240,33 N.E. 260
• Parties: WORLEY v. HINEMAN et al.
• Court: Indiana Appellate Court

6 Ind.App. 240

33 N.E. 260

WORLEY

v.HINEMAN et al.

Appellate Court of Indiana.

Feb. 16, 1893.

Appeal from circuit court, Owen county; G. W. Grubbs, Judge.

Action by Melvin M. Hineman and Robert P. Wood, as administrator, against Frank E. Worley, as administrator of Hiram Worley, deceased.Judgment for plaintiffs.Defendant appeals.Affirmed.

Myers & Corr, Fowler & Pickens, and Louden & Rogers, for appellant.W. R. Harrison, Buskirk & Duncan, and Beem & Hickam, for appellees.

REINHARD, C. J.

This was a claim filed against the estate of appellant's decedent, Hiram Worley, by the appellees, Melvin M. Hineman and Robert P. Wood, administrator of the estate of James E. Wood, deceased, for damages for breach of covenant of warranty.A demurrer to the complaint was overruled, and this ruling is the first specification of error upon which the appellant asks a reversal.The complaint or statement of claim shows that in the year of 1868Hiram Worley conveyed to the claimant Hineman and one George N. Pruett certain real estate in Ford county, Ill., by deed with covenants of warranty, for the consideration of $2,600; that the said parties lived in the state of Indiana, in which state said deed was made and delivered.A copy of the deed, which is the common, short-form, warranty deed used in Indiana, is filed as an exhibit with the complaint, and shows that the same was duly acknowledged.The complaint proceeds to aver that subsequently the said Hineman and Pruett conveyed said real estate, with covenants of warranty, to one James E. Wood, whose estate is one of the claimants herein, and that Wood subsequently, in like manner, conveyed the same to Samuel A. Thompson and Joseph P. Evans; “and claimants aver that, at the time of the acceptance of the said deed from the said Worley, there was a valid and subsisting mortgage thereon, for a large amount, to wit, the sum of $1,000; that subsequently such proceedings were had on said mortgage in the proper court of said Ford county that the said mortgage was foreclosed on the ------ day of April, 1882, and the said real estate ordered sold in satisfaction thereof; the said Hiram Worley having been notified of the pendency of said foreclosure proceedings.”It is further averred that subsequently the said Thompson and Evans redeemed said real estate by paying therefor the sum of $2,480, which was necessary to protect their title thereto; that Evans then began a proceeding in the proper court against the claimant Hineman and Robert P. Wood, the administrator of said James E. Wood, to recover the amount so paid by him in redemption of said real estate, being $1,240, which was one half of the amount required for the redemption thereof; that afterwards the said claimants, being liable to said Thompson in a like amount, in order to avoid further trouble and expense of litigation, and a demand therefor having been made by him, paid said Thompson a like sum in satisfaction of his said claim; that the whole amount so paid by them was $2,480, each paying one half thereof; and that they paid and became liable, in the necessary defense of the said suits, in the further sum of $200; and they ask judgment for an allowance against the estate of appellant's decedent in the sum of $2,800.

The first point made against the complaint is that, as it is disclosed on its face that the alleged incumbrance existed at the time the deed was made to Hineman and Pruett by Hiram Worley, the covenant was broken as soon as it was made, and was therefore personal, and does not run with the land, and that Pruett, being a remote grantee, has no cause of action, and this being a joint suit, and one of the plaintiffs being shown to have no interest in the same, the entire suit must fail, and the demurrer for want of facts should have been sustained.Work, Pr. §§ 101, 102.

It appears from the averments of the complaint that all the parties to the transaction resided in Indiana, while the land conveyed was situated in Illinois.It is not urged by appellant's counsel that in the construction of the contract of warranty the laws of Illinois must govern, nor is the statute of that state pleaded or referred to as declaring a different rule from that obtaining in this state.What the appellant's counsel does contend is that the covenant relied upon is one that does not run with the land, but is purely personal.He argues that as, when Worley deeded the land to Hineman and Pruett, the mortgage was in full force, the covenant was broken as soon as it was made, and a cause of action accrued to the grantees at once, upon which they alone could have maintained an action.Whatever the doctrine may be, as declared in other states, we think it is well settled in Indiana that a covenant against incumbrances, embraced in the statutory form of Indiana deeds of general warranty, is one that runs with the land.For this rule the statute, and the comprehensive form of the guaranty used by virtue thereof, supply the reason.The term “convey and warrant” is construed as containing covenants, not only of title and seisin, and against incumbrances, but also for quiet enjoyment; and where the original grantor either had the title, or was in possession under claim of title, such covenant is in futuro, and runs with the land.Dehority v. Wright, 101 Ind. 382.In fact, the statute itself provides that the form of deed here employed shall be held to be a conveyance with covenant from the grantor himself, and his heirs and personal representative, to the grantee, his heirs and assigns; that the grantor is lawfully seised of the premises, has good right to convey the same, and guaranties the quiet possession thereof; that the same are free from incumbrances; and that he will warrant and defend the title to the same against all lawful claims.Rev. St. 1881, § 2927.Usually, it is true, a special covenant against incumbrances is in præsenti, and does not run with the land, as such covenant is broken as soon as made, and vests the right of action at once in the immediate covenantee, and in him alone, or in case of his death in his legal representative; but it is otherwise where the covenant against incumbrances is embraced in the general warranty.In that case any breach calculated to disturb the grantee in the enjoyment of his property is covered by his covenant, embracing, as it does, a guaranty for future as well as present enjoyment.He may wait until he is evicted, and then sue, or he may pay off the incumbrance, and bring his action, provided he finds it necessary to extinguish the incumbrance in order to ward off an eviction, if the land is legally bound.SeeJackson v. Green, 112 Ind. 341, 14 N. E. Rep. 89;Sinker v. Floyd, 104 Ind. 291, 4 N. E. Rep. 10;Black v. Duncan, 60 Ind. 522;Coleman v. Lyman, 42 Ind. 289.

The fact that Worley, when he conveyed to Hineman and Pruett, did not have possession of the land, being a resident of Indiana, can add no force to the appellant's position, when it is conceded, as it is here, that he had the title, subject only to the mortgage lien.He was in a position to give possession, and this was sufficient.It would have been otherwise, of course, had Worley received no title whatever from his grantor.In that case the want of title in him when he conveyed to Hineman and Pruett would have constituted a breach of covenant of seisin, which would have given such grantees the sole right of action, and this right would not have been assignable; for, as Worley could have transferred nothing that would vest any sort of estate in future, there could have been no assignment by his grantees of any right attaching to the lands, and the right to recover for a breach would be purely personal.But here Worley had the title to the premises subject only to the lien of the mortgage; and there was no disturbance of the quiet enjoyment until there was an ouster or eviction, or until the mortgage debt was paid by the grantee in possession.Whether, under the law of this state, an action could be maintained for a breach of such covenant without showing a payment of the mortgage debt, is a question not now before us.In such case, however, no more than nominal damages could be recovered, in any event.

While it is not claimed by appellant's counsel that the question whether or not the deed contains a covenant that runs with the land should be decided by the law of Illinois, and not by that of Indiana, it is insisted that the plaintiffs have no cause of action, inasmuch as the covenant is purely personal, and has not passed to the remote grantee; and in support of this contention our attention is called to the case of Fisher v. Parry, 68 Ind. 465.In that case it was decided that where a deed is made in Indiana, by and to a resident of this state, to land in Missouri, the question as to whether or not the deed contains a covenant of warranty that runs with the land must be determined by the law of the state where the land is situated.As the statute of Illinois is not pleaded, we must presume that the common law is in force in that state, under which the form of deed here employed would perhaps not be sufficient, as containing a covenant, to the extent covered by our statute.Under the common-law rules where a plaintiff sued upon a covenant running with the land, the action was considered a local one, and could only be maintained in a court within the jurisdiction of which the land was situated.This doctrine was carried to the extent of denying the right of action in any other court, even if it left the plaintiff without remedy, as where both parties resided in a state other than the one in which the land was located.Rawle, Cov. § 303, and notes;Clark v. Scudder, 6 Gray, 122.But that this rigid rule of the common law has undergone a marked change in some of the jurisdictions of this country is manifest from the decisions and statutes in different states.As is well said by the author referred to: “Local l...