Wheeler v. County of Wayne

Mr. Justice Wilkin

delivered the opinion of the Court:

If the declaration can be sustained at all, it must be upon the theory that the several deeds of conveyance from the county to the plaintiff contain covenants of title, among others, against incumbrances; and therefore the promise averred in the declaration is supported by a sufficient consideration, and binding on the county

Counties can only exercise such powers, first, as are granted by express words; second, those necessarily or fairly implied, in or incident to the powers expressed; and third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. * * * Of every municipal corporation, the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby. (1 Dillon on Mun. Corp. sec. 55; Cook County v. McCrea, 93 Ill. 238.) Neither can a county make a valid contract, even within the scope of its powers, except through its county board. (Sexton v. County of Cook, 114 Ill. 179; County Comrs. v. Jones, Breese, 237.) These questions, however, do not necessarily enter into the decision of this case, for if the power to make the contract set up in the declaration did exist, and if that power was exercised by the proper county board, still, unless the declaration shows that the undertaking and agreement were supported by a valuable consideration, the demurrer was properly sustained.

To entitle a grantee to relief, either in law or equity, on account of incumbrances upon or defects in title, his deed must contain appropriate covenants, or he must show fraud on the part of his grantor. 3 Washburn on Real Prop. (5th ed.) 477; Snyder v. Laframboise, Breese, 343; Sheldon v. Harding, 44 Ill. 68; Botsford v. Wilson et al. 75 id. 132. If, therefore, plaintiff’s deeds from the county contain no covenants, the latter was under no legal obligation to remove incumbrances existing against the lands conveyed, and any promise to do so would be a mere nudum pactum.

No express covenants are alleged to exist in these deeds, but plaintiff in error contends that the language, “there is granted to * * * the following described lands, * * * to have and to hold the said tract to the said grantee, and to his heirs and assigns forever, as a good and indefeasible estate in fee simple,” should be construed as importing covenants of title. It is first to be observed that the latter part of the above quotation, “to have and to hold,” etc., is but a habendum ■clause, the purpose of which is merely to define the estate which the grantee is to take in the property conveyed. “It has now,” as Chancellor Kent observes, “degenerated into a mere useless form.” It is no essential part of a deed. Devlin on Deeds, sec. 213; 3 Washburn on Beal Prop. (5th ed.) p. 466. The words, “good and indefeasible estate in fee simple,” are not therefore to be considered as containing covenants of title, as contended by counsel for plaintiff in error. If, however, they could be so considered, still there is nothing in them, or •other words used in the deed, from which covenants can be implied.

At common law, covenants were implied only from the use of the word “dedi,” and grew out of the feudal system. Cases are cited by Mr. Bawle,.in his work on Covenants for Title, (p. 359,) in which covenants were held to be implied by the use of other words, such as “granted and conveyed,” “granted,” '“granted, bargained, sold, enfeoffed, and confirmed,” but he ■says Chief Justice Kent, in the year 1840, conclusively showed that in the creation of a freehold, the words, “bargain, sell, .alien and confirm, or other words than ‘do’ or ‘dedi,’ imply no warranty whatever by the common law.” (Pages 360, 361.) Therefore, except, possibly, when the word “give” is used, covenants can only be implied where some statutory words are used. The words, “grant, bargain and sell,” were given that •effect by the statute of 6 Anne, c 35. The statute of Illinois in force when the deeds in question were executed, though taken from Pennsylvania, is in substance that of 6 Anne. Alabama also adopted the Pennsylvania statute.

In Gee v. Pharr, 5 Ala. 586, (39 Am. Dec. 339,) the words used in the granting part of the deed were, “bargained, sold, released.” The plaintiff insisted that they amounted to a covenant against incumbrances under the Alabama statute, and .for a breach of that covenant he brought his action. A demurrer was sustained to the declaration, and he appealed. The contention in the Supreme Court was, that although the word “grant” was not used, the other two words of the statute were, and that they were sufficient to constitute the covenant sued on. It was decided otherwise, and the judgment of the court below affirmed. Clay, J., rendering the opinion of the court, says: “If such covenant exists at all, it must be by statute, the words ‘grant, bargain, sell,’ implying no such warranty at the common law. The statute was intended to give an effect to those words which they did not possess at common law. If one of these words may be dispensed with in the creation of the covenants named in the act, so might others, and the introduction of either of them into a deed might be made to operate as a covenant under the statute, when perhaps it was never thought of by either.party.” It is expressly held in that case that covenants will only be implied where all the words of the statute have been used. This decision is cited with approval in Frink et al. v. Darst, 14 Ill. 304. (See, also, Whitehall v. Gotwall, 3 Pa. 323.) No authority to the contrary has been found. It is not therefore the province of this court to say, from general language used in a deed, that the parties intended it to be a warranty deed; but the question is, does the deed contain express covenants of title, or does it use the words from which, by statute, such covenants may be implied. Here, we find neither. We must therefore hold the conveyances from the county to the plaintiff in error were quitclaim deeds, imposing no obligation whatever upon the county to defend the title.

In this view of the case it is unimportant to decide whether or not the county of Wayne had the power to execute warranty deeds to its swamp lands. As at present advised, we are of opinion that no such authority is given by the statute, but are not to be understood as deciding that question.

For the reasons stated, the judgment of the Appellate Court is affirmed.

Judgment affirmed.