Crisfield v. Storr , 36 Md. 129 ( 1872 )

Grason, J.,

delivered the opinion of the Court.

In 1834, Thomas "Watson conveyed one undivided half part of his farm in Dorchester county, known as the “ Too tell Land,” to his mother, Mary Watson, in fee, and afterwards died intestate, leaving his sister, Sally Bradshaw, wife of Joseph Bradshaw, his only heir-at-law, to whom the other half of said farm descended. In 1837, Mary Watson died, having first executed a will in due form to pass real estate, by which she devised to Sally Bradshaw, for life, all that part of the farm which had been conveyed to her by Thomas Watson, with a limitation over as follows: “ But if the said Sally Bradshaw should have a child to cry, then it is my will and desire that the above-mentioned land should go to the said child; hut if the said child should die, then it is my will and desire that the above-mentioned land should go to Algernon S. Piercy, son of the late George Piercy, during his natural life, and then it is my will and desire that it should go to George W. Piercy, to him and his heirs lawfully begotten, forever in fee simple.” On the 24th of May, 1842, Joseph and Sally Bradshaw conveyed all said farm to Henry Page, in fee with a covenant of warranty against all persons who might thereafter claim the same under the will of Mary "Watson, and against all persons whatsoever, except Algernon S. Piercy, who had, on the 23d of May, 1842, conveyed all his interest in said land to said Page. On the 25th of September, 1842, Sally Bradshaw had a son, William Eugene Sulivane Bradshaw, born alive. On the 24th of January, 1843, Henry Page and wife conveyed said land to Leah S. Howard, in fee with warranty, and on the 7th day of JSovember, 1844, she conveyed the same to Thomas Storr in fee, with warranty. Thomas Storr died in the spring of 1866, having first made his will in due form to pass real estate, by which he devised one part of said land to his son William W. Storr, and the remaining part to his son John H. Storr. On the second day of July, 1867, William E. S. Bradshaw brought his action of ejectment against William W. and John H. Storr, to recover one-half of said land, devised to him in remainder by Mary Watson’s will, and on the seventh day of May, 1868, recovered a judgment for the same. The defendants in the ejectment brought suit on the seventeenth day of March, 1870, on the covenant, of Henry Page, he and his wife being then dead, against his heirs, who are the appellants in this case. At the trial of the case below, a demurrer was filed to the narr. and was overruled, and exceptions were taken to the granting of the two prayers of the plaintiffs and to the rejection of the four prayers of the defendants, and the judgment being in favor of the plaintiffs, the defendants appealed.

/It was admitted, at the argument of the case in this Court, tltat under the will of Mary Watson, Sally Bradshaw took a life estate in the one-half of the land named, with remainder in fee to her unborn child, and, in the event of such child dying, then with remainder overhand that the fee descended to Sally Bradshaw, sub modo, so as to let in her after-born child, in the event of one being born/ It was contended however that the remainder, limited to Sally Bradshaw’s unborn child, was' a contingent remainder and that it was destroyed before the birth of the child, either by the merger of the life estate, which Sally Bradshaw took under her mother’s will, in the fee, which descended to her as heir at law of her mother; or by the deed from Joseph and Sally Bradshaw to Henry Page, which it was alleged operated as a feoffment, or by the warranty of Joseph and Sally Bradshaw, which being a collateral warranty descending from them to W. E. S. Bradshaw, their heir, barred his recover^ We do not think that either of these points is tenable, /in the first place there was no' merger of the life estate in the fee in Sally Bradshaw, for the reason that the fee descended from the same person, under "whose will she took the life estate, and the life estate began and the fee descended at the same instant. Fearne, in his work on Contingent Remainders, marg., 344, says: “Wherever a testator limits a contingent remainder, it is agreed that the inheritance descends to the heir only till the contingency ' happens; if so, nothing can be more absurd than to make such descent destroy the contingency. The will does not operate till the testator’s death; the descent takes effect at the same time; so that, under such a construction, the ^particular estate, given to the heir by the will, arises and is destroyed in one and the same instant; and how is it destroyed? by the descent which that very same will permitted. • This would be making a will and no will at the same time, and would, in effect, be saying, that a limitation of a particular estate in a will to a testator’s heir-at-law, with a contingent remainder over without any ulterior vested remainder, must be void in its creation. For it is evident that,, under such a construction, the particular estate can never take effect at all, its existence and destruction commencing together; and that being destroyed, the contingent remainder over is also gone before it has even a moment’s chance for existence.” Koav this would be making the will, in this respect, ipso facto, void. See also Plunket vs. Holmes, 1 Lev., 11 ; Boothby vs. Vernon, 9 Mod., 147; 4 Kent’s Comm., 253, 254. So that, even if the estate limited to the unborn child of Sally Bradshaw be a contingent remainder, it would not have been destroyed by a merger of Sally Bradshaw’s life estate in. the fee wjnch descended to her as heir-at-law of her mother. )

( But there is another answer to this point, which applies with equal force to the point that the deed from Bradshaw and wife to Page operated as a feoffment, and is conclusive of both, even if that deed could be regarded as a feoffment, which we think its language and terms would not warrant us in holding it to be. At the date of that deed, William E. S. Bradshaw was en ventre sa mere, and the remainder became vested and was not contingent.}

In the case of Reeve vs. Long, 1 Salk., 228, marg., it was held by the House of Lords, upon appeal from the Common Bench, that, where a testator devised an estate for life to his nephew, Henry Long, remainder to his firs!, son in tail male, remainder to his successive sons, and in defaidt of such issue, then over; and Henry Long died, his son born after his death took the remainder. Chancellor Kent, (4 Comm., 249 marg.,) refers to the case of Reeve vs. Long, and says: ‘‘It is now settled law in England and in this country that an infant, en ventre sa mere, is to be deemed in esse for the purpose of taking a remainder, or any other estate or interest Avhich is for his benefit.” But it Avas argued that, as the remainder, in this particular case, Avas limited to such child as should be born to cry, it Avas dissimilar to a remainder to a child of Sally Bradshaw, and that it could not therefore vest until the contingency happened, that is, until a child Avas born, and ceied. Even if this were so, we have shown that there was no merger and no feoffment by which the contingent remainder could be destroyed. But it is evident that nothing more was intended by the use of the words, “ born to cry,” than that the child should be born alive. This is made manifest by the terms used in the will in limiting the remainder over to Algernon S. Piercy, which was to take effect only in the event of such child dying, clearly showing that it was the testatrix’s intention that the remainder to the unborn child of Sally Bradshaw should take effect if it was born alive. This being so, we have shown that the remainder vested in the child, en ventre sa mere.

It was also argued with much earnestness that William E. S. Bradshaw was barred from recovering the land in question, by the collateral warranty which descended upon him, and that the Statute of IV Anne, ch. 16, is not in force in this State. That Statute is found in Kilty’s British Statutes, 246, among those which are in force in this State, and he says that the 21st section is proper to be incorporated as applicable to our circumstances; and as there is no case to be found in which a collateral warranty has been enforced in our Courts, we must presume that it has always been considered in force here, especially as it is peculiarly “ applicable to our circumstances,” and well adapted to the policy of our laws and system of government, which favor and facilitate the free disposition and transmission of real estate. The 21st section of the Statute provides that all warranties which shall be made after the time therein mentioned by any tenant for life, of any lands, &c., the same descending or coming to any person in reversion or remainder, shall be void; and that all collateral warranties of any lands, tenements or hereditaments made by any ancestor who has no estate of inheritance in possession in the same, shall be void against the heir. The warranty of Bradshaw and wife to Page is therefore void as against Wm. E. S. Bradshaw, and cannot affect his right of recovery against the-defendants in the action of ejectment, because at the time of the warranty the remainder had, as we have shown, vested in him, and Sally Bradshaw had then a life estate only in the land.

Having shown that none of the objections urged against the right of Wm. E. S. Bradshaw to recover the one-half of the Tootell land, devised to him by Mary Watson, are valid, it becomes necessary to consider the objections raised to the rulings of the Court below during the progress of the trial, and first, those raised by the demurrer to the declaration. It is alleged that there is a variance between the narr. and the proof, the narr. alleging that the “herein described premises were devised to the plaintiffs” by Thomas Storr, which imported a joint devise, whereas his will shows that he devised the land to them in severalty. This also involves the question of the alleged misjoinder of the plaintiffs. Henry Page’s covenant ran with the land and came to the devisees of Thomas Storr, who stood in the place of the original covenantee, and therefore they had a joint interest in the covenant as against the covenantor, although their interests, as between themselves, were several, and consequently they had the right to join in the action. Had they sued separately, it might well have been objected that separate suits could not be maintained, because it would be impossible to ascertain what proportion of the damages should be awarded to each, especially as it does not appear what proportion of the land in question in the ejectment suit, was devised to the plaintiffs in this ease, respectively. It was for the interest and convenience of the appellants that the appellees should sue jointly aud have but one recovery. In the case of Paul vs. Witman, 3 Watts & Sergt., 409, it was said, “ whether the plaintiffs can sustain a joint suit is a point not without difficulty. The contract was made with the testator; and it would be unreasonable that he should be at liberty, by devising the land in separate parcels, to subject the warrantor to as many actions as there are devisees. Suppose the warrantor, on eviction of the warrantee, is ready and willing to pay, how is he to ascertain the proportion to which each of the devisees is entitled, when the portions of the real estate devised are of unequal value? Is the Avarrantor to be liable to as many suits as there are heirs ? Although, as between themselves, their interests are several, yet, as respects the Avarrantor, they hold a joint interest, and as such may sue jointly.” There is much force in this reasoning, and the decision lays doAvn the correct rule of laAV by which such a case as this ought to be governed.

It Avas further contended that, by the true construction of the covenant of Henry Page and Avife, it bound their joint heirs only, Avhereas the parties sued thereon are the heirs of Henry Page alone. It is very evident that the covenant was for themselves and their heirs respectively, and, Mrs. Page’s covenant being void, that the heirs of Henry Page alone Avcre the proper parties to be sued. If the construction contended •for by the appellants should prevail, it must prevail as to all ■the parties named in and bound by the covenant; and yet it ■is manifest that there could not have been joint executors or ■administrators of Henry Page and wife. It Avas also contended that, as assigns were not named in the covenant, the suit could not be maintained in their name, but should have been instituted in the name of some party named in the covenant. All the authorities agree that covenants for title run with the land, enure to the protection of the owner, for the time being, of the estate which they are intended to assure, and that they may be enforced, not only by the covenantee and his representatives, but by his heirs, devisees and alienees. Rawle on Covenants for Title, 352, and authorities there cited. It was also 'Contended that the narr. is defective because it does not allege that the title, under which the plaintiffs-Avere evicted, Avas alder and better than the title of the covenantor, or that it was in existence at the date and before the making of the.covenant.

We think that this objection is well taken, and that the Court erred in not-sustaining the demurrer. It is Avell settled that, in actions -on -covenant of warranty, it is necessary to prove that the eviction of the plaintiff was had. under a title paramount, and existing at the date of the covenant, and this being so, it is equally necessary that the narr. should so allege. The reason assigned for the necessity for such an averment is, that it will be contended that the title of the person evicting is derived from the plaintiff, unless such an averment is contained in the narr. Wotton vs. Hele, 2 Wm. Saund., 181, note; Stephens vs. Pattie, 3 Bibb, 117; see also Naglee vs. Ingersoll, 7 Barr, 205; Foster vs. Pierson, 4 Term Reps., 617; Hodgson vs. East India Co., 8 Term Reps., 278; Folliard vs. Wallace, 2 Johns. Rep., 395 ; Kelly vs. Dutch Church of Schenectady, 2 Hill (N. Y.) Reps., 111; 4 Robinson’s Prac., 33; Webb vs. Alexander, 7 Wend., 286; Fenwick vs. Forrest, 5 H. & J., 416.

The necessity for such an averment is even greater where there have been several intermediate conveyances, as in the latter case it would be intended, if the narr. did not aver that the title of the party evicting was older and better, and existing at the date of the covenant, that he had derived it from some one of the intermediate grantees. In such a case the title of the party evicting might well be older and better than that of the defendant in the ejectment, and yet not older and better than that of the covenantor, and if it was not older and better than the latter there would bo no breach of the covenant.

What we have before said with respect to the vesting of the remainder, under the will of Mary Watson, in William E. S. Bradshaw, while an infant en ventre sa mere, disposes of the appellants’ first and second prayers. They did not state the law correctly, and were properly rejected. There was no error in rejecting their fourth prayer. It was admitted in argument that the appellees had a right to abandon their appeal in the ejectment suit, Avithout affecting thereby their right to maintain this action. This prayer is based upon the theory that there Avas evidence in the cause tending to prove that the appellants received a consideration for giving up their appeal. Clement Sulivane was called by the appellants, and was the only witness examined as to this point, and he testified that there was no agreement or arrangement made by the parties to the ejectment suit in regard to the abandonment of the appeal, and that, for aught he knew, W. E. S. Bradshaw was not estopped from suing the appellees for mesne profits, nor the latter from prosecuting their appeal from the judgment in the ejectment. There being an entire absence of proof in this respect, the fourth prayer was for this reason, if for no other, properly rejected.

The second “prayer of the appellees and the third of the appellants relate to the measure of damages. We have carefully examined the authorities referred to by the counsel of the respective parties, and many others upon this point, and are satisfied that neither of the prayers states the correct rule. The decided weight of authority is that the plaintiff in an action of covenant of title, is entitled to recover the consideration money named in the deed, with interest, and the costs in the ejectment suit, and where the suit is by the covenantee against the covenantor, the consideration in the covenantor’s deed is the principal sum to be recovered. But where the suit is by the assignee of the covenantee then the measure of damages is, not the consideration mentioned in the covenantor’s deed, (for if that were so there might in some cases be a recovery for much more than the assignee had paid for the property,) but the consideration, which the assignee has paid to his immediate grantor, with interest from the date of'the eviction, and costs in the ejectment suit, with this limitation ■however that the recovery cannot be for an amount exceeding the consideration received by the covenantor for the same lands. See Booker’s Adm’r vs. Bell’s Ex’rs, 3 Bibb, 175; Kelly vs. The Dutch Church of Schenectady, 2 Hill, 116; Bennett vs. Jenkins, 13 Johnson’s Rep., 51; Hanson vs. Buckner’s Devisees, 4 Dana, 253; Wyman vs. Ballard, 12 Mass., 304; Stewart vs. Drake, 4 Hals., 142; Wilson vs. Forbes, 2 Dev., 39; 4 Kent’s Comm., 475, marg.; Pitcher vs. Livingston, 4 Johns. Reps., 1. This rule is certainly the one best calculated to do justice between the parties, and is sanctioned by the weight of authority. There is some conflict in the cases as to the right to recover counsel fees paid in defending the ejectment. It is the duty of the covenantor and those bound by the covenant, upon receiving notice, to defend the covenantee’s title, and upon their refusal or neglect to do so, it is clear that the latter would have the right to employ counsel for that purpose, and to recover, in an action on the covenant, such reasonable fees as they had been compelled to pay. But as the appellees did not give such notice, but voluntarily undertook to defend the title, they have no right to recover the counsel fees which they may have paid.

Had notice been given to the appellants they might have thought proper to defend the suit and employ their own counsel, or they might have come to the conclusion that the title of the plaintiff in the ejectment could not be successfully resisted, and they might therefore have determined not to incur a useless expense in making a defence, and preferred to perform their covenant by paying to the appellees the amount of damages to which they might be entitled.

The Court below therefore properly rejected the appellants’ third prayer, but erred in granting the instruction asked by the appellees’ second.

The first prayer of the appellees was also alleged to be defective, because it did not submit to the finding of the jury certain facts material to the plaintiffs’ case, to wit: whether William E. S. Bradshaw was the son of Sally Bradshaw, or the time of his birth, or whether assets came from Henry Page to the appellants. And further, because the prayer put it to the jury to find whether the plaintiff in the ejectment recovered the land sued for, by virtue of an older and better title than that of Henry Page, instead of stating the facts and instructing the jury that if they should find such facts, they constituted an older and better title than that of said Page; thus submitting a question of law to the jury which it was the province of the Court alone to pass upon. We do not deem it necessary to notice these objections, inasmuch as the case will be sent back for another trial, when any defects in the prayer, which are liable to objection in the Court below, may be easily corrected.

This prayer was also alleged to be erroneous, because it required the verdict, if in favor of the plaintiffs, to be rendered against the defendants in solido. The heirs of Henry Page stand in his place and are answerable for a breach of his covenant, if they have real assets from him by descent. In Hoffar and Wife vs. Dement, 5 Gill, 137, it was held /that whatever be the number of co-parceners they all constitute but one lieir, and that they are connected together by unity of interest and unity of title. The appellants therefore all constitute but one heir of Mr. Page, and are jointly liable, if liable at all, and the verdict ought to be against them in solido. Were it otherwise, there would be imposed upon the covenantees and their assigns in all cases, the very difficult, if not impossible task of ascertaining exactly what amount of assets had descended from the covenantor to each of his heirs. If either of the heirs should be compelled to pay, in satisfaction of a judgment against them, an amount greater than the assets which he took by descent, he would have a right to go into equity arid compel contribution from his co-heirs.

As no point was made either in the brief or in the argument of the counsel of the appellants, in regard to the ruling of the Court below upon the demurrer to the seventh plea, we must presume that they acquiesce in that ruling. We are of opinion however that the demurrer was properly sustained, as the plea stated a mere conclusion of law. It was also properly sustained as to the eighth plea, which was interposed as a bar to the action because Henry Page and wife had both been dead twelve years before the suit was commenced. It is well settled that, in actions such as this, limitations do not begin to run until there is a breach of the covenant. Rawle on Cov. for Title, 596, 602, and the authorities there cited.

(Decided 22d May, 1872.)

The counsel of the appellants also contended that the appellees were bound to seek satisfaction of their claim out of the personal estate of Henry Pago, before a recovery could be had against them as his heirs. We do not concur in this view. It might so happen that a covenantor might die and his personal estate be fully administered before any breach of the covenant, as was probably the case in this instance; so that it would be impossible to have satisfaction out of the personal assets, and yet, according to the views of the appellants, the heirs of the covenantor would not be responsible, though real assets had descended to them; and thus the party injured by the breach would be left without remedy. It was also claimed that the judgment in the ejectment case was not legally admissible as evidence against the appellants, because no notice of the pendency of that suit had been served upon them. As the record of that case was offered generally, and admitted without objection, we are not prepared to say that the whole record W’as not properly before the jury. But even if objection had been made, the record would have been clearly admissible for the purpose of proving the fact of the judgment. As the appellants had received no notice of the pendency of the ejectment, it was legally admissible for no other purpose. Key vs. Dent, Adm’r of Wood, 14 Md., 98.

As the Court below erred in overruling the demurrer and in granting the appellees’ second prayer, the judgment appealed from will be reversed and a new trial awarded.

Judgment reversed and new trial awarded.