Pierce v. Johnson , 4 Vt. 247 ( 1832 )

Hutchinson, C. J.

pronounced the opinion of the Court.— We are called upon,, by these pleadings, to- decide what is intended by some expressions in the section of the statute of limitations, which has been read by the plaintiff’s counsel. The Court have had some difficulty upon this section before ; and it is not very easy to give it any practical construction, that is perfectly free from all doubt, as to what was intended by the legislature.

The question is, whether the action upon this covenant is barred in eight years from the breach of the covenant j. that is from the date of the deed,, according to the first clause of the section : or, whether it is a case only barred in ten years after a decision-against the title of the grantor, according to the after provisions of the same section- If it comes within the latter clause, the rejoinder is a good answer to the replication, which presents the statute as a bar: for the statute would net commence running in such a ease, till there had been a decision against the title of the grantor-Otherwise,, if it comes within the first clause of the section ; because that clause has no reference to a decision against title, but only to the time when the cause of action shall have accrued : and' that, upon the usual'covenant of seizin,, is at the date or execution, of the deed, if ever. The covenant is, that, at the ensealing of the deed, he is well seized, &c., not that he will be so at any future time.

Upon reading this statute, it is manifest, that the question, already stated, must be decided by deciding one in different shape, to wit, whether the covenant declared upon in this plea in offset, is a covenant for securing the title of land, conveyed by said deed, within the meaning of this section of the statute ? It is a covenant in a deed of conveyance of land ; and it is a covenant of, or about tide. Still the question remains, is it. what the legislature term, a covenant for the security of title. Now all the common covenants in deeds of conveyance of lands, are, in some sense, forthesecu-rity of title. None of them furnish any pe rfect security, that the grantee and his heirs and assigns shall in fact hold the land ; but all are intended as security, that the grantee shall recover adequate damages if he fails to- hold the land. Even the covenant against incumbrances is of this character. A covenant, that the grantot is seized of the premises, and nothing more, has no reference to title, but only to the having possession under some claim of title. This naked covenant of seizin was probably introduced for the purpose of securing an easy entrance upon the land by the-grantee, or to guard against the effect of an adverse .'possession,, which would render the deed void,as an instrument of conveyance, and throw the grantee upon his covenants as a remedy. For either or both of these, purposes, the naked covenant of seizin would be adequate and useful. The doctrine, established in some of the neighboring states, that the covenant of seizin is satisfied by a possession without title, cannot well be reconciled to sound reason, except when applied to the naked covenant of seizin, without any words that imply any other right but mere possession. It has always been customary, in this state, to add to that covenant words extending beyond a mere possession, without, or with claim of title; In the case of Moses Catlin vs. Dan Hurlburt, reported in the third volume of Vermont Reports, page 403, the covenant was in the same words as in the present case, “ and had good right to sell,” &c. That was adjudged to be a covenant of good title, and the plaintiff recovered the consideration money and interest. The defendant, in this case, covenants that he is well seized in fee simple, and that he has good right and lawful authority to sell as therein written. That is, that he was so seized as to convey a good title in fee. This covenant being of, or about, title, we must search farther for the distinction intended by the expressions used in the statute.

The whole statute in question seems to have been intended to limit all kinds of actions, or nearly so. Almost all are expressly enumerated. The description in the section, creating a bar to actions of covenant, is so extensive as necessarily to include all possible covenants. And the general enacting clause, if we leave odt the exception therein contained, creates a bar in eight years from the time of the accruing of the cause of action ; and this would extend to all actions of covenant whatever. Those actions, which come within this exception, are barred in ten years from dme a decl'sio« agaiost the title of the grantor ; this, probably, being considered to be the time, when the cause of action would accrue. If the excepting clause had stopped at the word tend) and, of-course, had excepted all actions upon covenants in deeds of conveyances of land, the subject would have been plain, and the distinction plain; and the only question that could arise, would be, whether the covenant, upon which the suit is brought, is, or is not, in a deed of conveyance, of land ? But the exception from the eight years, and transfer to the ten years limitation, rests on^. further distinction, to wit, whether it is, or is not, also, a covenant for securing the title of the lands conveyed. The framers of this statute seem to have had in contemplation covenants of both kinds in deeds conveying lands; else, why did they use the double expression, “ in deeds of conveyances,” and “ for securing title ?” This presents the enquiry, how this exception applies to covenants of warranty, any more than to other covenants in deeds of conveyance ? The terms of this covenant are more like the actual securing title, than those in the other usual covenants. Tho difference, to'be sure, is more in the operation of things, than in the final result. This is the only covenant, the specific performance of which would be literally securing title. Upon either of the others there could be no decree of any act as a specific performance ; all must be the paying of damages for the breach of covenant; damages because he was not well seized ; or because he had no right to convey ; or because there were incumbrances on the land. The performance of this covenant would be the keeping off all other titles, and keeping the grantee in the quiet enjoyment of the premises. This would be literally securing the title to the grantee. Moreover the legislature may well be supposed to use terms according to their known signification in the common law. The authorities cited by the plaintiff’s counsel, show, that this covenant is the only'- one on which a warrantiu charted could be founded at common law. That gives it a claim to be denominated a covenant for securing title, above the other usual covenants.

Again, the usual course is, and ought always to be, soto frame statutes of limitations, that they run against a claim, only from the time, when the cause of action is matured, and the party might sue, if he pleased. This should be so ; first, because no person should be barred of his rights, without having first a reasonable time in which he might secure them; 2d, because no presumption ef payment, or settlement, can begin to arise from any neglect to prosecute, until the party has aright of action.

The statute provision, of ten years from a final decision against the title of the grantor, may be considered of the same import as ten years from the time when the cause of action accrued. And yet the legislature may have intended to enact, that an eviction by elder and better title, submitted to without suit, shall not be evidence to entitle the grantee to recover upon his covenant of warranty ; but that the eviction shall be shown by a judicial decision against the title. Such have been the decisions,, without reference to this statute. However this may have been, it is evident, that the legislature considered that this section provided a bar to all actions of covenant; and that all vvere barred in eight years, except those specific as a different class, to be barred in ten years. Now, it would not be a fair construction of this statute, should we decide, that an action upon the covenant of seizin, which is broken, and may be sued immediately upon the giving of the deed, if ever, may lie dormant, not only eight, but ten, twenty, or even a hundred years, and then an action be maintained upon it.

It is further observable, that the action upon a covenant of seizin must be brought in the name of the grantee, and cannot be maintained in the name of the assignee. This covenant, being broken at the execution of the deed, becomes a mere chose in action, and cannot be assigned, by any law in force here, so as to enable the assignee to recover upon it in his own name. Such original grantee may commence his suit as soon ash'e pleases y and there is no greater hardship in his being barred, if he neglects his rights, than for him to be barred of his remedy upon any other contract. And it makes no difference in the hardship, whether there are other covenants in the deed or not.

If the legislature attached any definite meaning to the expressions they used, they must have intended this distinction ; that those covenants of warranty, which are considered as broken, only by a judicial decision against the title of the grantor, are covenants to secure title, and may be sued at any time within ten years from a final decision against such title ; and that those covenants, which are considered broken without any such judicial decision, of which the covenant of seizin is clearly one, must be sued within eight years from the time of the breach ; that, though such covenants are in a deed of conveyance of land, they are not covenants to secure the title, but only covenants to secure the recovery of damages on account of the failure of title. The statute might have been so framed as to provide, that covenants not: 'n ^eei^s conveyance of lands, and covenants in such deeds, that may be considered broken, without any decision upon the title, shall be sued within eight years from the time of the breach, anc^ not a^ter 5 an^ ^lat those covenants, which are not considered broken, till there is a final decision against the title of the grantor, must be sued within ten years from such decision. Had the statute been thus framed, the construction would have been plain and easy. Such is not its language ; yet, the things described seem, in other language, to mark out ihe same practical distinction. The subject matter of this plea in offset, being a covenant of seizin, and the same appearing to have lain dormant more than eight years, the replication of the statute of limitations of eight years is a good and sufficient bar to this plea in offset; and the rejoinder, that there had been no decision, against the title of the grantor, is no sufficient answer to this replication; because the breach of this covenant of seizin was complete, without such a decision. This rejoinder would be a good answer to the replication often years, if the matter of the plea in offset rendered that replication necessary. But this last replication is, itself, of no importance to the action.

The judgement of the county court, which was in favor of the plaintiff, is affirmed.