Slater v. Rawson

This is an action to recover damages for the breach of certain covenants in a conveyance of land made by the defendant to Samuel Slater and John Tyson, through whom, by sundry conveyances, the plaintiffs derive their title as assignees and subsequent purchasers. The covenants in the deed of the defendant are in the usual form, embracing the covenants of seizin and right to convey, a covenant against incumbrances, and also a covenant of warranty. The breach alleged in the declaration is, that one Elisha Jacobs, having an elder and bet ter title than that of the defendant, entered upon the land, claiming title thereto, and that the plaintiffs, admitting his superior title, voluntarily surrendered the possession to him. To establish the title of Jacobs, the plaintiffs offered in evidence a deed from one John Rawson to William Sears, dated May 6th, 1782, and sundry other deeds conveying this title, as derived from Sears, and vesting it in Jacobs. The defendant admitted that the deed from John Rawson was prior in time, to that under which he claimed to have acquired title ; but he contended that the deed of Rawson to Sears did not include the land which the plaintiffs ha.l thus voluntarily surrendered to Jacobs. This presented a question of boundary, and much evidence thereon was submitted to the jury. In the course of the inquiry as to the boundaries of the land conveyed by Rawson to Sears, a question arose as to the construction to be given to that part of the description of the land in this deed, which is contained in the following words : 16 Thence running south, about five degrees west, by said Thomp*455son’s farm, so far as to include 150 acres it being contended by the defendant, that the grantee could not, under that description of the land, extend his line beyond the southerly line of the Thompson farm, but must be limited by that as a monument. But it was ruled, that it was competent for the jury, in fixing the location and boundaries of the Sears lot, to extend the line of the same beyond the southerly line of the Thompson farm, if taking the other boundaries, which were established by satisfactory proof, and the whole description of the land conveyed, they clearly show that the recital of the Thompson farm, as the extent of the boundary, was a defective and imperfect description, as to this part of the land conveyed. To this ruling, as it seems to the court, there can be no valid objection. The recent case of Clark v. Munyan, 22 Pick. 410, fully sustains it, and the same principle has been frequently adopted.

The only other question, upon which any opinion in matter of law was given at the trial before the jury, was upon the subject of damages. The jury were directed, if they should find for the plaintiffs, to assess the damages at the value of the land at the time of the voluntary surrender of it by the plaintiffs upon the entry by Jacobs, with interest from that time ; and this, as we understand, is not denied by the defendant’s counsel to be the correct rule for assessing the damages, if the plaintiffs can maintain their action. But upon the argument before us, upon the case as stated by the parties, the defendant insists, that as he was not seized of the land, which is now the subject of controversy, at the time he executed the deed to Slater and Tyson, and so nothing passed by his deed to his immediate grantees, and they therefore could pass no estate, nor any covenants, to an assignee, which would authorize an action in his own name, he is not liable to the plaintiffs, to any extent, on his covenants.

The distinction as to the legal effect of the different covenants usually introduced into our conveyances, however little it may have been understood or regarded prior to the cases of Marston v. Hobbs, 2 Mass. 433, and Bickford v. Page, 2 Mass. 455, is now very well settled. The covenants of seizin and right to convey are to all practical purposes synonymous *456covenants ; the same fact, viz. the seizin in fact of the grantor, claiming the right to the premises, will authorize both covenants, and the want of it is a breach of both. But upon these covenants no action can be maintained in the name of an assignee or subsequent purchaser ; for if broken at all, they are necessarily broken at the moment of the execution of the deed ; and not running with the and, they do not pass by a subsequent conveyance of the land. The covenant of warranty, on the other hand, is a covenant running with the land, and may be made available to a subsequent purchaser, however remote, if the conveyances are taken with proper words to pass the covenant. But 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. If therefore the defendant, at the time of the making of his deed to Slater and Tyson, was not seized, then the covenant of warranty did not pass to the plaintiffs as assignees, and the only liability of the defendant is upon his covenant of seizin, which covenant, for the reasons already stated, is wholly unavailable to the plaintiffs.

It is to be taken as established by the finding of the jury, and is also in accordance with the pleadings on the part of the plaintiff, that the defendant, at the time of making his conveyance, had no legal title to the twenty-two acres of land, which the plaintiff has yielded up to the claim of Jacobs ; but that the title to the same was then, and had been for a long period previously, in William Sears and those claiming under him. The further iquiry then is, whether the defendant was seized in fact of these premises, claiming right thereto, at the time of executing his deed to Slater and Tyson.

The case, as stated by the parties, in the report, finds that the premises, which are the subject of this controversy, were a part of a large tract of woodland unenclosed by fences, and of-which there had been no actual occupation by any of the parties. Taking these facts to be correctly stated, there was *457clearly no seizin in fact, in the defendant, acquired by an entry and adverse possession. The rule, as to lands that are vacant and unoccupied, that the legal seizin follows the title, seems to be- applicable here ; and having ascertained in whom is the legal title, that also determines in whom the seizin is. But the plaintiffs have alleged in. their declaration, and established by their evidence, the fact that the legal title to the land surrendered was not in the defendant at the time of the execution of the deed by him, but was in those who claim under William Sears. It being thus shown that there was no seizin in fact, nor any legal title to the premises, in the defendant, it necessarily follows that the covenants of seizin and right to convey were broken, and that nothing passed to Slater and Tyson, which they could transfer to the plaintiffs as the foundation of an action in their own name. The covenant of seizin was broken at the moment of the execution of the deed, and became a mere chose in action not transferrable ; and the covenant of warranty is wholly ineffectual, as no land passed to which it could be annexed ; and ihe result, therefore, from this view of the case, is that the plaintiff cannot maintain his action.

It was said in the argument, that the defendant should be es-topped to deny his seizin, and thus avoid the covenant of warranty, because by his own deed he has affirmed it, and that should be conclusive against him. Without deciding whether such estoppel might or might not, under any circumstances, be interposed where there are various covenants in a deed, and the party be thus subjected, at the election of the covenantee, to damages different from those which the law has prescribed for the covenant which is actually broken; or, in the case of an assignee, to allow him to recover for the breach of a covenant which is shown in fact never to have passed to him ; it seems to us clear, that in the present case no such objection can avail, as the plaintiff, in his declaration, and by his own showing, has established the fact that the defendant had neither the seizin nor the legal title to the land conveyed.

It was further suggested, upon the argument, that the ground of defence now principally relied on, that the covenant of war*458ranty did not pass to the plaintiffs, in consequence of the want uf seizin in the defendant, is not open to the party; not having been presented in this form at the trial before the jury. As a general rule, questions must be raised at the trial, or they will not be open here ; and for the very obvious reason, that the opposite party may have the proper opportunity to supply any defects in his proof upon the points excepted to. But as, in the present case, the facts, as stated in the report, and as they appear to be conceded by both parties, show the objection, now urged and relied upon in defence, to be one that could not be obviated by any further proof on the part of the plaintiff, the court have felt themselves authorized to consider that point as open, and have disposed of it in the manner already stated. The result is, therefore, that upon the case as now stated, the plaintiff cannot maintain bis action.

JVeiii trial ordered