Aird v. Alexander , 72 Miss. 358 ( 1894 )

Whitfield, J.,

delivered the opinion of the court.

The proposition that had the warranty deed been made to appellee, and had he then sold to D. W. Alexander, the latter might have sued Aird and wife on the covenant and recovered only what he paid his immediate vendor, is not tenable in this state. Brooks v. Black, 68 Miss., 161. The case of Lawrence v. Robertson, 10 S. C., 8, supports Brooks v. Black. It is true the opinion of Kershaw, circuit judge, holds the contrary, but the opinion of the supreme court of South Carolina, immediately following in the report,' rejects as unsound the rule announced by the circuit judge. The cases of Williams v. Beeman, 2 Dev., 483, and Crisfield v. Storr, 36 Md., 129, support counsel’s contention, bxit they are both cited and disapproved in Brooks v. Black, supra, and the dissenting opinion of Ruffin, J., in the former, pronounced unanswerable. The case of Birney v. Hann, 3 A. K. Marshall, 1164, is not in point. There was a regular chain of conveyances there, each containing the same covenant, and the point decided is that, in such case, an intervening grantee can maintain an action on the covenant against the remote grantor, the last grantee having-been evicted under title paramount,' and having recovered against such “intervening grantee” a judgment, which judgment had been paid by him. The court expressly puts it on the ground that ‘ ‘ ITann would have been entitled to the action if he had never conveyed and had been subjected” to the payment of the judgment “because he had conveyed.”

The bond for title, on the case disclosed by this record, was completely merged in the deed to D. W. Alexander, and ap-pellee had no cause of action, legal or equitable, against appellants, on the covenant raised by the use of the word ‘ ‘ warrant, ” under the statute, § 2480, code 1892.

If it be said that the bill should be maintained on the theory of a trust, the answer is that, on the facts, the deed was made to the father, who paid the money, and if the trust is found in a contract between the son and the father, it is within the statute of frauds. If it be said the son paid the seventy-five dollars, and the title was put in the father, the father is not made a party, and, if he were, the title is shown to have been so put in him by ‘ ‘ agreement of all the parties. ’ ’

Reversed, and bill dismissed.