Dow v. Lewis , 70 Mass. 468 ( 1855 )

Thomas, J.

That in a feoffment at common law the word dedi, “ give,” implied, in the absence of express covenants, a warranty during the life of the grantor, is well settled. Co. Lit, 384 a. 2 Inst. 275, 276. But we know of no authority or sound reason for extending this technical rule to an instrument which purports to be and is but the execution of a power given by statute, and in which the grantor neither assumes to have nor to convey any estate, title or interest of his own.

The deed of the officer, duly made, “ shall give to the purchaser all the right, title and interest in the premises, that the debtor had therein.” Rev. Sts. c. 73, § 38. See also St. 1798, c. 77, § 5.

If we were to seek to extend the effect of the word “ give ” in a feoffment at common law, to a sale made by an officer under the statute; as the estate conveyed is that of the debtor, and the deed given is that of the sheriff; we should be at a loss to determine what the implied warranty was—whether it was of an estate for the life of the debtor, or for the life of the officer.

In the case of a feoffment, if the grantor assumes to give and grant an estate, the law may well say that he that gives shall be presumed to intend at least an estate for his life, and a warranty to that extent. No such reason applies to this instrument. The officer, in the deed executed by him, assumes only to convey 11 all the right in equity ” the debtor had of redeeming the estate.

In the case of Sumner v. Williams, 8 Mass. 201, there is a strong intimation, to say the least, that in the case of a sale by an officer or trustee, from the use of the word “ dedi ” a covenant is not to be inferred as an implication of law. There is no case that has determined otherwise. There is no good reason why there should be.

The difficulty in this case is, that the officer has not so taken the preliminary steps, has not so complied with the provisions of law, as to enable him to make a valid deed, and the grantee has no covenants that the officer has so complied.

if the plaintiff has a remedy, it is upon no covenants, express or implied

Demurrer sustained.