The opinion of the, court was delivered by
KENNEDY, I.
The Circuit Court was certainly correct in telling the jury, that the plaintiff at the time he sold the lan'd to Robert Forsythe, had but a life estate in it. The reversion in fee, was vested in his children which.he had by his wife Grace. But it is believed that the court was in error in saying, that the releases and deeds executed by Vincent and the other children, did not [513]*513transfen the life estate of the father, the plaintiff, 'to the heirs of Robert Forsythe, together with the benefit of the covenant of general warranty, contained in his .deed to Vincent. As the father made his deed of conveyance to Vincent alone, he alone thereby became invested with all the father’s estate in the l.and, whether legal or equitable, and he alone could, after this, convey it to For-sythe or his heirs. Now, although Vincent, in his deeds of release, to Forsythe’s heirs, has no direct reference to his having derived any interest or right to the land from his father, he does in express terms, release,all his estate, right, title, interest, property, claim and demand whatsoever, without saying from whom he derived what he thereby released. Pie neither refers to his father or mother, as having obtained any interest in the land, through or by or from them, or either of them. He traces the title down, to his mother in these lands, but he does not undertake to say that that title had become vested in him by descent, or in any other way.. The whole certainly does profess and import to release and transfer all the estate, right, title, interest, property, claim and demand ivhatsoever, and must necessarily include all the estate, right, title,, interest, property, claim, and demand which he had to the land, whether derived from his father or mother. As well might it be said, that his release had passed nothing which descended to him from his mother, because it is not alleged' by recital or otherwise, in the release that he had become invested with any interest or claim to the land in that way. • This error of the Circuit Court, might readily happen in the hurry of the trial, from a misapprehension of the language ■ of-the release, and the very short time that i's allowed upon those occasions for examination, in supposing that the interest and estate released, were described as having descended to the i’eleasor from his mother. Such, however, is not the fact. I consider it evident then, that Vincent, by his deed of release, passed to the heirs of Robert Forsythe, a complete legal title-for the life'estate, which had been in his father, as also for all his reversionary interest in fee, to one undivided third part of the'lands. Y also think it manifest, fr'om the whole transaQtion, and the face of the deeds and documents, that they were all executed with a view to, and for the purpose of, carrying into effect, the articles of agreement which the plaintiff had made with Robert Forsythe. It is evident from the clause which is. contained in the deed of conveyance from the father to Vincent, that he did it for the express purpose of enabling him to convey to Forsythe, after the purchase money should be paid; and with that in his mind, he adds a covenant of general warranty, which Vincent, when he transferred in fee to Forsythe would necessarily transfer also to Forsythe, as it was a covenant that would go with the land. In order to do this it was [514]*514pot necessary that Vincent should make a deed of conveyance or release to Robert Forsythe, or his heirs, with a general warranty on his part, so as to enable Forsythe or his heirs in case of eviction to recover of the plaintiff for a breach of his covenant of warranty contained in the deed of conveyance to Vincent. For this purpose it would have been sufficient for Vincent to have conveyed or to have released in fee simple, to Forsythe or his heirs, without any warranty at all. Indeed it may be, that this is the more safe way,-in order to avoid all objections; though I think myself,' that either with or without general warranty, would answer the same end. Yet the general rule laid down on this-subject, in. Bickford v. Page, 2 Mass. 460, and in Kane v. Sanger, 14 Johns. 93, is, that when covenants run with the land, if the land is assigned or convoyed before the covenants are broken, and afterwards, they arc broken, the assignee or grantee can .alone bring the action of covenant to recover damages; but if the grantor or assignor is bound to indemnify the assignee or grantee, against such breach of covenant, then the assignor or grantor must bring the action, and in the case last cited, it was held, that the grantee or assignee with warranty could not maintain an action for breach of covenant by a prior warrantor,' because the plaintiff had his indemnity on the covenant made immediately to himself. This qualification of, or-exception to the rule, is not to be found in Co. Lit. that I know of. In Co. Lit. 384 b., Coke, on this subject says, ‘ ‘in judgment of law, the assignee of the heir is the assignee of the ancestor, and so the assignee of the assignee shall vouch in infinitum within these words (his assigns.”) See also Butler’s note to-page 384 a, No. 333, where he says, a purchaser who has notice of a defect in the title to the land, at the time of his buying;, and does not take a covenant to provide against it from his vendor, he is without remedy; unless he can avail himself of the covenants of the earlier vendors, many of which are inherent to the lands, and to some of which, as the covenant for quiet enjoyment, there is no objection on account of their antiquity, when the breach is recent. I am inclined to think, that the assignee or grantee, may maintain his action for a breach of covenant, which takes place in his time* and that has run with the land, whether he have a warranty or not to himself, against any of the prior grantors or assignors, who have entered into -such covenants. Withy v. Mumford, 5 Cowan, 137, Booth v. Starr, 2 Connec. Rep. 244, Shop. Touch. 176, 198, Com. Dig. tit. Covt. G. 3. Baylye v. Hughs, Cro. Car. 137, Bac. Abr. Covt. E. pl. 2, 5. Middlemore v. Goodale, Cro. Car. 503. In this transaction it is further manifest, that the children-of the plaintiff) have given and executed their releases of all right,, interest, claim and demand whatsoever, which they had to the land, in fayor of the heirs, of Robert Forsythe, for the purpose of [515]*515carrying into effect the articles of agreement which their father made with the deceased. They had no contract or connection .with Robert Forsythe or his heirs, in respect to the land. ’ They were under no obligation to them or either of them. There is no'reasón for which'it can be supposed or imagined that they .executed the rev leases, but that of fulfilling the agreement and design of their fath-. er in making Robert Forsythe and his heirs perfectly secure in the title to the land. .For this purpose it was not necessary that they should bind themselves by warranty, nor yet express any other consideration in their deeds than nominal ones. The deed of conveyance from the plaintiff to his son, constituted him a trustee for carrying into effect his agreement with Forsythe for the sale of the land. It is fair to presume that Vincent
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The opinion of the, court was delivered by
KENNEDY, I.
The Circuit Court was certainly correct in telling the jury, that the plaintiff at the time he sold the lan'd to Robert Forsythe, had but a life estate in it. The reversion in fee, was vested in his children which.he had by his wife Grace. But it is believed that the court was in error in saying, that the releases and deeds executed by Vincent and the other children, did not [513]*513transfen the life estate of the father, the plaintiff, 'to the heirs of Robert Forsythe, together with the benefit of the covenant of general warranty, contained in his .deed to Vincent. As the father made his deed of conveyance to Vincent alone, he alone thereby became invested with all the father’s estate in the l.and, whether legal or equitable, and he alone could, after this, convey it to For-sythe or his heirs. Now, although Vincent, in his deeds of release, to Forsythe’s heirs, has no direct reference to his having derived any interest or right to the land from his father, he does in express terms, release,all his estate, right, title, interest, property, claim and demand whatsoever, without saying from whom he derived what he thereby released. Pie neither refers to his father or mother, as having obtained any interest in the land, through or by or from them, or either of them. He traces the title down, to his mother in these lands, but he does not undertake to say that that title had become vested in him by descent, or in any other way.. The whole certainly does profess and import to release and transfer all the estate, right, title, interest, property, claim and demand ivhatsoever, and must necessarily include all the estate, right, title,, interest, property, claim, and demand which he had to the land, whether derived from his father or mother. As well might it be said, that his release had passed nothing which descended to him from his mother, because it is not alleged' by recital or otherwise, in the release that he had become invested with any interest or claim to the land in that way. • This error of the Circuit Court, might readily happen in the hurry of the trial, from a misapprehension of the language ■ of-the release, and the very short time that i's allowed upon those occasions for examination, in supposing that the interest and estate released, were described as having descended to the i’eleasor from his mother. Such, however, is not the fact. I consider it evident then, that Vincent, by his deed of release, passed to the heirs of Robert Forsythe, a complete legal title-for the life'estate, which had been in his father, as also for all his reversionary interest in fee, to one undivided third part of the'lands. Y also think it manifest, fr'om the whole transaQtion, and the face of the deeds and documents, that they were all executed with a view to, and for the purpose of, carrying into effect, the articles of agreement which the plaintiff had made with Robert Forsythe. It is evident from the clause which is. contained in the deed of conveyance from the father to Vincent, that he did it for the express purpose of enabling him to convey to Forsythe, after the purchase money should be paid; and with that in his mind, he adds a covenant of general warranty, which Vincent, when he transferred in fee to Forsythe would necessarily transfer also to Forsythe, as it was a covenant that would go with the land. In order to do this it was [514]*514pot necessary that Vincent should make a deed of conveyance or release to Robert Forsythe, or his heirs, with a general warranty on his part, so as to enable Forsythe or his heirs in case of eviction to recover of the plaintiff for a breach of his covenant of warranty contained in the deed of conveyance to Vincent. For this purpose it would have been sufficient for Vincent to have conveyed or to have released in fee simple, to Forsythe or his heirs, without any warranty at all. Indeed it may be, that this is the more safe way,-in order to avoid all objections; though I think myself,' that either with or without general warranty, would answer the same end. Yet the general rule laid down on this-subject, in. Bickford v. Page, 2 Mass. 460, and in Kane v. Sanger, 14 Johns. 93, is, that when covenants run with the land, if the land is assigned or convoyed before the covenants are broken, and afterwards, they arc broken, the assignee or grantee can .alone bring the action of covenant to recover damages; but if the grantor or assignor is bound to indemnify the assignee or grantee, against such breach of covenant, then the assignor or grantor must bring the action, and in the case last cited, it was held, that the grantee or assignee with warranty could not maintain an action for breach of covenant by a prior warrantor,' because the plaintiff had his indemnity on the covenant made immediately to himself. This qualification of, or-exception to the rule, is not to be found in Co. Lit. that I know of. In Co. Lit. 384 b., Coke, on this subject says, ‘ ‘in judgment of law, the assignee of the heir is the assignee of the ancestor, and so the assignee of the assignee shall vouch in infinitum within these words (his assigns.”) See also Butler’s note to-page 384 a, No. 333, where he says, a purchaser who has notice of a defect in the title to the land, at the time of his buying;, and does not take a covenant to provide against it from his vendor, he is without remedy; unless he can avail himself of the covenants of the earlier vendors, many of which are inherent to the lands, and to some of which, as the covenant for quiet enjoyment, there is no objection on account of their antiquity, when the breach is recent. I am inclined to think, that the assignee or grantee, may maintain his action for a breach of covenant, which takes place in his time* and that has run with the land, whether he have a warranty or not to himself, against any of the prior grantors or assignors, who have entered into -such covenants. Withy v. Mumford, 5 Cowan, 137, Booth v. Starr, 2 Connec. Rep. 244, Shop. Touch. 176, 198, Com. Dig. tit. Covt. G. 3. Baylye v. Hughs, Cro. Car. 137, Bac. Abr. Covt. E. pl. 2, 5. Middlemore v. Goodale, Cro. Car. 503. In this transaction it is further manifest, that the children-of the plaintiff) have given and executed their releases of all right,, interest, claim and demand whatsoever, which they had to the land, in fayor of the heirs, of Robert Forsythe, for the purpose of [515]*515carrying into effect the articles of agreement which their father made with the deceased. They had no contract or connection .with Robert Forsythe or his heirs, in respect to the land. ’ They were under no obligation to them or either of them. There is no'reasón for which'it can be supposed or imagined that they .executed the rev leases, but that of fulfilling the agreement and design of their fath-. er in making Robert Forsythe and his heirs perfectly secure in the title to the land. .For this purpose it was not necessary that they should bind themselves by warranty, nor yet express any other consideration in their deeds than nominal ones. The deed of conveyance from the plaintiff to his son, constituted him a trustee for carrying into effect his agreement with Forsythe for the sale of the land. It is fair to presume that Vincent accepted of this trust, as he has not only made an assignment of all his interest and estate in the lands to Forsythe’s heirs, but obtained authority of his brother and sister to transfer their rights also. In this way Forsythe’s heirs have not only become the assignees of the plaintiff, and as such entitled to the benefit of his general warranty in the.deed to Vincent, but by the deeds of release and conveyance from the children of the plaintiff, every claim and interest that are knqwn to have existed at any time for this land in any body; have been vested in these heirs, except the claim which the Commonwealth has for a balance of the purchase money.
This brings us to another question, which will present itself on the trial of these causes again, in the Circuit Court; and therefore it is proper to express the opinion of this court on it now. In order to decide this question correctly, it is necessary'to look into the whole of the agreement between the plaintiff and Robert For-,, sythe; and to ascertain what was their meaning and intention; for this, whatever it may be, if lawful, must determine the matter on this point. In one part of the agreement the plaintiff covenants, “,’to sell and convey to him, (Forsythe) by a good warranty deed in fee simple.” This,, according to some decisions, if there was nothing more in the agreement relating to this matter, would imply an obligation on the part of the plaintiff to procure a patent for the land, but in a subsequent part of the agreement follow these words; ‘‘It is further understood between the parties, that the said James will deliver to the said Robert the original deed given by the said Charles Cox, to the said Grace Cox de Chaumont, to be regis-. tered in the counties of Mifflin and Medford, state of- Pennsylvania, and that the said James is to be at no expense for the said registering or obtaining the patents, or any other title, voucher or document which the said Robert will think proper to get for his own personal satisfaction or security. The said James, giving him full power at the same time to claim the said title, voucher or docu[516]*516ment from every person or persons, public or private.” Here we have an express stipulation, that the plaintiff is to be at no expense in obtaining the patent. What is the expense of obtaining the patent, and what would be generally understood by this expression? Surely whatever remained to be paid to the state, in order to obtain it. It is a rule in the construction of agreements to give effect to all the words used by the parties, as far as practicable, and to receive them according to their common acceptation. It appears to me that it would not only be a direct violation of this rule, but of the intention of the parties, to decide, that the plaintiff was bound by this agr eement to be at the expense of procuring the patent. It has been contended that the other words which stand in connection with the words “obtaining the patent,” show that they were used to convey a quite different idea; such as not being at the expense of registering or obtaining certified copies of title deeds for the land, or the deeds themselves, wheresoever they might be found, either with a public officer, in a recorder’s office, where they might have been left for record, or with any private individual. All this may well apply to the deeds forming the links in the chain of title for this land, from the warranty down to Grace Cox’s; for it would seem from the plaintiff’s having covenanted to deliver to ’Forsythe the original deed of conveyance, and that alone, from Charles Cox to Grace his daughter, that that was the only deed, voucher or document connected with the title to the land that he had in his possession; and that Forsythe was to look after the others, and to be at the expense of procuring copies when the original could not be had, and to have the authority and power of the plaintiff, to demand and receive the original deeds wherever they might be found. All this was necessary as a preparatory step to obtain from the land-office the patent; but it seems to me impossible, without doing violence to the meaning of the parties to say, that they, both knowing that no patent existed then, intended nothing more by using the words “obtaining the patent,” than that the plaintiff should not be at the expense of registei'ing it, which to be sure is done in the land-office; but for which every body knows there is no separate charge or fees to be paid; or for obtaining a certified copy of a patent known not to be in being. It appears to me that such title, as the plaintiff was bound to make to Forsythe or his heirs, has already been made; and there remains no good objection to the payment of the balance of the purchase-money, whatever it may be. That the non-suits in both cases ought to be taken off, and the causes reinstated for trial, and records remitted to the Circuit Court, which is ordered to be done.
Judgment reversed, and new trial awarded.