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WIGGINS v. PENDER.
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 can not 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 icluded 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
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.
From a judgment for the plaintiff, the defendants appealed.
John L. Bridgers and G. M. T. Fountain, for the plaintiff. Gilliam & Gilliam, for the defendants.
WALKER, J., after stating the case. The argument in this case was confined to the first contention of the defendant,
WIGGINS v. PENDER.
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 can not 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 and 4 William 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 lostwere 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
The defendant's counsel relied on the case of Smith v. Ingram, 130 N. C., 100, 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 an
WIGGINS V. PENDER.
nexed 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. "In this case, the assigns shall have an action of covenant, albeit they were not named, for that the remedy by covenant doth run with the land, to give damages to the party grieved, and is in a manner appurtenant to the land. See in Spencer's case, before remembered, divers other diversities between warranties and covenants which yield but damages." Coke, 385A. And so it was resolved in Spencer's case that if a man makes a feoffment by words sufficient to imply a warranty, the assign of the feofee shall not vouch, but if a man make a lease for years by words which imply a covenant, if the assignee of the lessee be evicted, he shall have a writ of covenant; for the lessee and his assignee hath the yearly profits of the land which shall grow by his labor and industry, for an annual rent, and, therefore, it is reasonable when he hath applied his labor, and employed his cost upon the land and be evicted (whereby he loses all), that he shall take such benefit of the demise and grant as the first lessee might, and the lessor hath no other prejudice than what his especial contract with the first lessee has bound him to. The principle does not depend upon tenure, but upon privity of estate. The question involved is whether the parties have sufficient mutual relation to the land which the covenant concerns, or, as it is commonly expressed in the cases, whether there is a privity of estate, which is considered necessary when there is no privity of contract. It will be seen that the necessary relation is something different from the ancient privity of estate, and that in many cases the expression is used in a modern sense. . The original and ancient warranty was a real covenant the remedy
WIGGINS v. PENDER.
on which was by voucher or writ of warrantia chartae, and which bound the covenantor to replace the lands in case of the eviction of the grantee, by others of equal value. The modern covenants of title, which are often spoken of as personal covenants because the action on them is a personal action, have taken the place of this. All of these are for the benefit of the land, and as loss suffered by breach of any usually, if not always, falls on the owner of the land, there would seem much practical advantage if the owner of the land, who suffers loss by a breach of any of them, could have his action against the covenantor. But, however it may be with covenants of seizin and against incumbrances (which are necessarily broken, if at all, when made) a covenant of warranty, that is, the covenant to warrant and defend is always regarded as a prospective covenant, the benefit of which will run with the land to any successive grantee, and of which there will be no breach until eviction. This covenant of warranty binds the original grantor and his personal representatives to the owner of the land and any owner during whose possession a breach occurs can sue any or all previous covenantors, even though the deed under which he himself claims has no covenant of warranty. In order that an assign shall be so far identified in law with the original covenantee, he must have the same estate, that is, the same status or inheritance, and thus the same persona quoad the contract. The privity of estate which is thus required is privity of estate with the original covenantee, not with the original covenantor; and this is the only privity of which there is anything said in the ancient books. In this case, privity of estate is considered as something entirely different from tenure. Clearly the presence of tenure is not necessary to enable covenants either as to their bnefits or their burdens, to run with the land. Spencer's Case, 1 Smith, L. C. (9th Ed.), 174 and notes.
WIGGINS v. PENDER.
It is said by Mr. Rawle in his excellent work on Covenants that "In the earliest days of the law of which we have accurate knowledge, warranty, which like homage was a natural incident of tenure, passed with the transfer of the estate and inured to the benefit of the owner for the time being. When, later, deeds were introduced and the warranty was either express or was implied from the word of grant, dedi, neither the heir nor the assign of the grantee could take advantage of the ranty unless expressly named. But while this was so as to warranty, it was not so as to certain covenants-and chiefly among those were the covenants for title the benefits of which passed with the land to the heir or the assign though not expressly named. Just why or how this was so is nowhere stated in the old books with such precision as would preclude argument. In more modern times, amidst much differences of opinion, the doctrine has been variously supposed to depend upon privity of tenure, or privity of estate, upon the nature of the estate, upon the nature of the covenant and upon the relation of the covenant to the estate; and the difficulty of the questions themselves is not less great than the practical importance of their results. But whatever may have been the grounds on which the doctrine was originally based, it has been from the earliest times consistently held both with regard to the ancient warranty and the modern covenants for title that they run with the land to its owner for the time being, that is to say, the owner of the land is considered entitled to the benefit of all the warranties and covenants which the prior owners in the chain of title may have given." Rawle on Covenants, 5th Ed., p. 292, Sects. 203, 204. He further says, quoting from Coke the passage above mentioned: "As respects the rights of the assignee a distinction always existed between warranty and the covenants for title. Thus the warranty implied by the word dedi could not be taken advantage of by the assignee of him who had re