Claunch v. Allen , 12 Ala. 159 ( 1847 )

COLLIER, C. J.

The deed which the plaintiff has set out in his declaration contains none of the usual express covenants; and the only breach alledged in the declaration, upon which an issue was tried, is that which affirms that the defendant entered upon the lands conveyed, and ejected the. plaintiff therefrom against his will; and after ejecting, has kept him out of possession and taken the use, rents and profits to himself. This breach evidently presupposes a covenant for quiet enjoyment, to prove a breach of which it is ordinarily necessary to give • evidence of an entry upon the grantee, or of expulsion from, or some actual disturbance in the possession ; and this, too, by reason of some adverse right existing at the time of making «the covenant, and not of one subsequently acquired. But it is said, it will not suffice to prove a demand of possession, by one having title; nor a recovery in ejectment; or in trespass; unless there has also been an actual ouster. If, however, the grantor himself enters tortiously, claiming title, it is a breach. [2 Sugd. Tend. 512, 10th ed.; Sedgwick v. Hollenback, 7 Johns. Rep. 376.] But not if the entry was without claim of title. [Seddon v. Senote, 13 East Rep. 72; Penn v. Glover, Cro. Eliz. 421.] The declaration does not alledge that the entry of the defendant and ouster of the plaintiff was under a claim of title, and it may well be questioned from the authorities cited, if he entered as a mere trespasser without any pretence of right, the plaintiff could maintain the present form of action ; but would have to resort to the action of trespass.

However this may be, if the plaintiff had sold and conveyed the interest which he acquired under the deed from the defendant, or it was levied on and sold under an execution against his estate, he cannot maintain an action for a breach subsequently occurring. A covenant for quiet enjoyment., as well as never to claim or assert title to the premises, are said to be real covenants, running with the land. When either of these covenants, or others coming within the same category, are broken after the land has been conveyed to the assignee, the general rule is, that he alone has the right to sue for the damages; bnt if by the nature and terms of the assignment, the assignor is bound to indemnify the assignee against the breach of such covenants, it seems that the assignor may sue in his own name. [2 Greenl. Ev. 195, § 240. See also Griffin v. Fairbrother, 1 Fairf. Rep. 81-91, Bickford v. Page, 2 Mass. Rep. 460; Kane v. Sanger, 14 Johns. Rep. 89; Niles v. Sawtel, 7 Mass. Rep. 444; Wyman v. Ballard, 12 Id. 306; Sprague v. Baker, 17 Id. 586; King v. Kerr, 5 Ham. Rep. 156; Clark v. Redman, 1 Blackf. Rep. 381; Mitchell v. Warner, 5 Conn. Rep. 497; Withy v. Mumford, 5 Cow. Rep. 137; De Chamont v. Forsythe, 2 Pennsyl. Rep. 507; Williams v. Beeman, 2 Dev. Rep. 483; Markland v. Crump, 1 Dev. & Bat. Rep. 94; Astor v. Miller, 2 Paige’s Rep. 68; Suydam v. Jones, 10 Wend. Rep. 180.] And an assignee under a sheriff’s sale, as well as under a mortgage, comes within the rule we have stated. [McCrady v. Brisbane, 1 Nott & McC. Rep. 104; Tufts v. Adams, 8 Pick. Rep. 547.] If these citations lay down the law.correctly, the plaintiff cannot maintain an action for the supposed breach of covenant, although there were no other objection to its maintenance, than the assignment of his title by the sale and conveyance by the sheriff.

If the possession was left vacant by the plaintiff, or those holding under him, an entry upon it after the sale by the sheriff, would not be a trespass against the plaintiff; because, as he had parted with the title, he could not be deemed to have the constructive possession, which, where there is no one in possession, or claiming adversely, will be referred to the title.

But if all these objections to the plaintiffs right to recover were out of the way, there is perhaps another alike fatal. We have said that the deed contains no such express covenant, and the question is, can a covenant be implied. The 20th section of the act of 1803, “respecting conveyances,” [Clay’s Dig. 156,] enacts, that in all deeds to bea recorded in pursuance thereof, whereby an estate of inheritance in fee simple, shall hereafter be limited to the grantee or his heirs, the words “ grant, bargain, and sell,” shall be adjudged an express covenant to the grantee, his heirs and assigns, &c., to wit: that the grantor was seized of an indefeasible estate in fee simple, freed from incumbrances done or suffered from the grantor (except the rents and services that may be reserved,) as also for quiet enjoyment against the grantor his heirs and assigns; unless limited in express words contained in such deed: and the grantee, his heirs, executors, administrators and assigns, may in any action assign breaches, as if such covenants were expressly inserted. [See Roebuck v. Dupuy, 2 Ala. Rep. 535; Stewart v. Anderson and another, 10 Ala. R. 504.]

In Gee v. Pharr, 5 Ala. R. 587, it was decided, that the words, “ grant, bargain, sell,” must all be used in a deed, so as to create a covenant against incumbrances, &c. within the act cited; that the omission of either of these words would prevent the deed from thus operating. There the ¡operative terms were, “ bargained, sold, released, aliened, and .confirmed,” and it was held that they did not make the statute covenant. The deed before us, uses the terms, “ hath bargained and sold, and. by these presents doth bargain and sell.” If the case cited is to he recognized as authority, it is clear that the deed does not come within the act; that it contains no covenant to which the breach applies, and that the demurrer should have been sustained, not only to the. three last, but to the fourth breach also- [See Frost v. Raymond, 2 Caine’s Rep. 188; Sweitzinger v. Weaver, 1 Rawle’s Rep. 377.]

The error in the rulings of the circuit court is so apparent from what has been said, that it .is needless to add more than to declare, that the judgment is reversed, and the cause remanded.