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SNIDER V. NEWELL.
the times, as evinced in our system of legal procedure, under which the real matter in dispute should be clearly and plainly stated, tried and decided, leaving all outworn fictions to sleep in the limbo of things discarded by a practical age. Thus have passed away Richard Roe and John Doe in ejectment, the pretense of goods found in the old action of trover and other like fictions.
Many courts have deplored the "manifest absurdity" as they style it, of basing this action for a great moral, social and personal wrong upon a fictitious allegation that the father is a master who by reason of such wrong has lost the services of his daughter (Ellington v. Ellington, 47 Miss., 351; Cooley on Torts, 2d Ed., 275; Doyle v. Jessup, 29 Ill., 462, and many other cases) and courts have solemnly sustained verdicts for thousands of dollars when no loss of services whatever has been proved. From that anomaly, our statute and decisions have happily freed us.
In Doyle v. Jessup, supra, Caton, J., says: "It is beneath the dignity of the law to resort to a sort of subterfuge to give the father a right of action which is widely different from that for which he is really allowed to recover damages." Sir Frederick Pollock in his work on Torts (6th Ed.), 229, deplores that the English courts had not in the beginning “taken the bolder course, which might have been done without doing violence to any legal principle" of resting this action on its true basis, and quotes with approval Sergeant Manning's statement that the "fiction of loss of services affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn bread among strangers," and adds that the enforcement of a just claim should not depend upon such a mere fiction. The law itself is beholden to deal in truth with things as they are, and not in falsehoods, fictions, evasions or subterfuges, and the real status of this action, un
SNIDER v. NEWELL.
der our Code, can not be better summed up than by Chief Justice Doster at p. 367 of the opinion in Anthony v. Norton, supra (the whole opinion in which is well worth perusal), as follows: "If necessity ever existed for cloaking the real cause of action under the nominal disguise of another one, it no longer exists, and we hold accordingly. In this State a parent may maintain an action for the seduction of the daughter without averment, or proof, of loss of services or expenses of sickness." This goes straight to the mark like the arrow of Robin Hood on the heath at Ashby de la Zouch. The Kansas statutes cited and relied on by him, Kansas Code, Sec. 6: “There can be no feigned issues," and Kansas Code, Sec. 85, the complaint "must contain a statement of the facts constituting the cause of action, in ordinary and concise language and without repetition," are almost identical, verbatim with our Code, Sections 135 and 233 (2). Bouvier Law Dictionary "Fiction" says: "As there is no just reason for resorting to indirection to do that which might be done directly, fictions are rapidly disappearing before the increasing harmony of our jurisprudence. See 4 Bentham Ev., 300; 2 Pothier Ob. (Evans' Ed.), 43." The Constitution and The Code in this State abolished all fictions in legal procedure in 1868. They have been dead thirty-five years. We can not revive them, and there is no need to regret them.
WIGGINS v. PENDER.
WIGGINS v. PENDER.
(Filed May 12, 1903.)
1. COVENANTS- Warranty-Deeds-Grantee-Grantor.
A covenant of warranty in a deed inures to the benefit of the assignee of the grantee, though the word assign is not used in the warranty.
2. COVENANTS-Warranty-Deeds-Mortgages-Grantee-Grantor. The reconveyance of land by a mortgage by the grantee to grantor does not extinguish the covenant of warranty in the deed, and a purchaser at a sale under the mortgage is protected by the covenant in the original deed.
3. LIMITATIONS OF ACTIONS-Covenants-Warranty-Deeds. The statute of limitations does not begin to run on a breach of covenant of warranty in a deed for land until after eviction.
A judgment for possession and profits in favor of a prior grantee from the common source of title is a sufficient eviction to entitle a person to sue for breach of a warranty of title in the common grantor's deed, under which plaintiff claimed.
5. ATTORNEY AND CLIENT-Fees-Covenants-Warranty - Notice — Eviction.
6. COVENANTS Heirs.
Where a grantee in a warranty deed is evicted, and did not give the grantor notice of the suit, he cannot in an action on the breach of warranty recover of the grantor counsel fees necessary for defending the title.
Warranty Deeds-Executors and Administrators ·
In an action by the assignee of a grantee in a warranty deed against the administrator of the grantor, the assignee may recover though no real assets descended to the heirs of the grantor.
ACTION by J. H. Wiggins against James Pender, administrator of John Armstrong, and others, heard by Judge Francis D. Winston, at October Term, 1902, of the Superior Court of EDGECOMBE County.
This action was brought to recover damages for the breach of a covenant of warranty and was heard in the court below
WIGGINS V. PENDER.
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 seized of said premises in fee and have the right to convey the same in fee simple; that the same are free from all encumbrances, 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
WIGGINS v. Pender.
wife prior in date to his deed to the said Justice's 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 Justice's; 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 attorneys' 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