5 Connecticut, 497. - 1825. [Reported herein at p. 1094.]

Stewart V. Drake

9 New Jersey Law, 139 - 1827

[Reported herein at p. 1100.]

(c.) Covenants of 'warranty and of quiet enjoyment.

Stewart V. Drake

9 New Jersey Law, 139. - 1827.

The Chief Justice delivered the opinion of the court: John Sharps, Jr., of the county of Sussex, being the owner of two farms in that county, mortgaged them to secure the payment of a large sum of money. Afterwards, on the first of April, 1818, he sold one of those farms to Imla Drake, for $7,287 87, and conveyed it to him, by deed of bargain and sale, containing covenants of seisin, of freedom from incumbrances, for quiet enjoyment, and of genera] warranty. Drake entered into possession. In the year 1823, upon a bill filed in the Court of Chancery, on the mortgage, against Drake and others, a decree was made for the sale of the two farms, to satisfy the mortgage debt, then amounting to $9,569,96. On this decree an execution was issued, and the other farm being first sold by the sheriff, produced $5,300, leaving a balance of $4,269.96. On the 7th July, 1823, in order to raise the balance, Drake's farm was sold, and conveyed by the sheriff, for $2,800, to Joseph Drake, the son-in-law of Imla Drake, and at the time in possession of the farm, as his tenant. Joseph Drake, in September following, sold and conveyed the farm, for $3,200, to John Howell, who immediately went into possession. On the 13th of February, 1823, Sharps made an assignment for the benefit of his creditors, and within the time prescribed by the statute, Imla Drake exhibited his claim for the purchase money of the farm, $7,287.87. Upon exceptions, and a hearing in the Court of Common Pleas, the claim was admitted to a dividend. And this decision is brought here by certiorari.

It is admitted on all hands, that if Drake is entitled to exhibit a claim under this assignment, which will in the sequei be examined, the amount on which he is to be admitted to a dividend is the same as he would be entitled to recover in an action against Sharps.

On the part of the exceptants below, the plaintiffs in certiorari, it is insisted that Drake could not recover on the covenant of seisin, because the existence of a mortgage is no breach of that covenant; that on the covenants of quiet enjoyment and warranty he could not recover, because there had been no ouster or eviction, which is indispensable; and that on the covenant against incumbrances, he should be admitted to claim, at the utmost, not more than the balance, $4,269.96, unsatisfied by the first sale.

In the first place, as to the right of Drake to recover on the covenants contained in the deed. If a breach of any one of the covenants is shown, the right of recovery is established, and it will remain only to ascertain the amount. One of the covenants is, that the farm, at the execution of the deed, was free from incumbrances. There was, however, upon it a subsisting incumbrance, the mortgage made by Sharps. This covenant, therefore, was broken as soon as it was made, in the same manner as the covenant of seisin is said to be broken as soon as made, if the grantor is not then seised. Hale v-Dean, 13 John. 105; Prescott v. Trueman, 4 Mass. 627; Wyman v. Ballard, 12 Mass. 304; Funk v. Voneida, 11 Serg. & Rawle, 109. Moreover, the facts in this case establish a breach of the covenants for quiet enjoyment and of warranty. The rule in respect to these covenants was correctly stated by the plaintiff's counsel. To constitute a breach, there must be a lawful eviction, or a disturbance of the possession. By the effect, and usually by the terms, of the decree of the Court of Chancery, the parties defendants therein are forever barred and foreclosed of all equity of redemption, of so much of the mortgaged premises, as may be sold by virtue of the decree. In this case, a sale under the decree, and a conveyance by the sheriff, was made. The purchaser was actually in possession From the time of the conveyance by the sheriff he held, and rightfully held, the possession as his own, and shortly afterwards sold to another person, whom he placed in possession. Joseph Drake, the purchaser, had previously been the tenant of Imla Drake. But from the sheriff's conveyance the tenancy ceased. Imla Drake could legally claim neither rent nor possession against Joseph Drake. Both his title and possession ceased, and by legal means. A more complete disturbance of his possession, a more thorough eviction, could not readily be devised. The cases cited by the plaintiff's counsel, from Johnson's Reports, do not impugn, but accord with, this conclusion. The principle which pervades the whole is, that there be a disturbance in, or deprivation or cessation of, the possession, by the prosecution and operation of legal measures. * * *

We find no cause of reversal in the proceedings of the Court of Common Pleas.

(d.) Covenants for further assurance.

Deady. J., in

Lamb V. Burbank

1 Sawyer (U. S. Cir. Ct.) 227; No. 8012 Federal Cases. - 1870.

Upon the amended bill, the legal title is in the heirs of Daniel H. as tenants in common. If the writing of March 8 was executed by authority of Daniel H., and bound him and his heirs, still the legal title is in these heirs, and Burbank only has a right in equity to have a conveyance of such legal title. At the date of the writing of March 8, 1850, none of the parties had any interest in the land, except the bare possession - the legal title was in the United States. The first covenant in the writing is a special or limited covenant of warranty, "against the claims of all persons claiming by, through, or under the grantors," and only operates upon the estate which Daniel H. then had in the premises. It is well settled that such a covenant only refers to the existing title or interest granted, and does not bar the covenantor from claiming the same premises against his own covenantee or grantee by title acquired subsequent to the making of his own deed. 2 Washb. Real Prop., p. 665.