Clarke v. Priest

Gaynor, J.

The question is whether the covenant of the first grantor against incumbrances passed down the chain of title to the last grantee, so that she could bring action thereon, instead of being confined for redress to the covenant of her immediate grantor. The common-law rule established in this state was that such a covenant did not pass down the chain of title, but remained with the particular grantee to whom it was made. Chancellor Kent states the rule, viz.: “ The covenants of seizin, and of a right to convey, and that the land is free from incumbrances, are personal .covenants, not running with the land, or passing to the assignee; for, if not true, there is a breach of them as soon as executed, and they become choses in action, which are not technically assignable.” 4 Com. 471. This reason m> longer exists, choses in action with us having since been made freely assignable by statute. Code Pro. of 1848, §§ 91, 92; Code Civ. Pro., § 1910. It is irrational to stand by a common-law rule when the reason and foundation of it have been removed by legislation or by changed conditions. Nearly all of the incongruities in modem jurisprudence are the result of doing so. The decision in Mygatt v. Coe, 124 N. Y. 212, may be cited with other authorities for the existence still .of "the common-law rule; but that case has been so greatly discredited in its two subsequent experiences in the Court of Appeals that it can hardly be deemed a nauthority. 142 N. Y. 78; 147 id. 456. There are decisions in point which have regard for the law as a progressive science. Andrews v. Appel, 22 Hun, 429; Coleman v. Bresnaham, 54 id. 619; Colby v. Osgood, 29 Barb. 339; Ernst v. Parsons, 54 How. Pr. 163; Boyd v. Belmont, 58 id. 514.

The motion to set aside the verdict and for a new trial is denied.

Motion denied.