Garrow v. Hallett

2 Stew. 449

• Court: Supreme Court of Alabama
• Decided: January 15, 1830
• Status: Published

Opinions

By JUDGE SAFEOLD.

It may be premised, that after making the usual allowance for the zeal of counsel, and the latitude of forensic debate, the discussion in this case is strongly illustrative of the fact, that very eminent counsel, even on questions of ordinary magnitude, may imbibe thorough convictions favorable to opposite principles, corresponding to their wishes. It is conceived to be highly probable, as was earnestly insisted by the counsel on both sides, that each was entirely sincere in his belief that he was fully sustained as well by the authorities as by the justice of the case. A slight examination of the authorities may aid in reconciling the conflicting views taken of the subject.

The cases oí Jackson v. Alexander,

b and of Jackson v. Florence,c cited by the counsel for the plaintiff in error, are found to refer only to the import, of the words “ for value received” in a deed; toe consideration necessary to raise a use to the bargainor, under the statute of uses; the effect of the words “make over and grant,” in a conveyance; and the sufficiency of toe consideration necessary to render, a deed of bargain and sale operative. Here, the question is not whether the consideration was sufficient to afford validity to the deed, for as to that, there is no contest; but it is objected that the deed affords no sufficient consideration to sustain the promise for the purchase money. The case ol Van Eps v. The Corporation of Schenectady, d referred to on the part of the defendant, only recognises toe principle so far as was intended to apply to this case, that where a vendor has covenanted to execute a deed to the vendee, his heirs and assigns forever, no greater duty or obligation can be intended than to execute a conveyance or assurance of the property which may be good and perfect without warranty or personal covenants.

Th6 obligation for covenants in deeds, depends on the terms of the contract, and the principle as above declared, rests on the presumption that if personal covenants were intended by the contract, they would have been expressed. The case of Young v. Triplett,a bears a stronger analogy to the present one. It was on a note given on a contract for the purchase of land.- The defendant relied on a special plea, containing, among other matters, an averment, “that the vendor, at the time of making the conveyance, and since, had no sufficient title, and had not transferred to the purchaser, either title, or possession of the land sold; and that the consideration had utterly failed. A general demurrer to the plea having been sustained, the appellate tribunal observed, that the plea did not accuse the vendor of fraud, for notwithstanding it stated that he made promises which he was unable to perform, and representations which turned out to be untrue in the event, yet it did not allege that he knew the defects of title at the time of the sale, and failed to disclose them, or represented them to be otherwise contrary to what he knew: that of course there was no imputation of fraud, but the plea might have been true, and the vendor might have innocently made the contract, supposing he had the title, and could pass the possession; and on that ground, the plea could not be sustained. Nor did the plea put the defence upon the ground of a mutual mistake between the parties; for, from any thing that appeared, the vendee himself might have been conversantwith, and have well understood all the defects of title, and prospects of possession, and have run the risk of all these; and it was competent for him to do so; that this deed appeared not to contain any clause of general warranty, and that it indicated in some measure at least, a risking bargain.

This may be regarded as an authority sustaining the principle, that where there is neither fraud, false warranty nor mistake, the contract cannot be avoided on the ground of defect of title. How the law should be expounded in a suit on articles containing covenants for a description of title, which it has been ascertained the vendor is incapable of making; or in case of actual breach of covenants in the deed previous to the institution of the suit for the purchase money, it is unnecessary in this case to inquire. It is not contended that these articles covenanted for any other than a deed of release, or quit claim. The plea only avers the insufficiency, or want of title in the vendor: nor does it admit or deny that he had performed his covenants according to their true intent and meaning. It does not negative the presumption arising from the terms of the contract, that the plaintiff was well acquainted with all the circumstances of the title, or that it was Understood, and admitted, that the vendor had but a defective title, or only a possessory claim. Nor does it deny that the purchaser, according to the terms of the articles, has received the possession, and has enjoyed all the use and profits that were contemplated. It is a rational and legal presumption that some of these are the facts of the case, or that the purchaser had been disappointed in some contingency affecting the title, which he voluntarily contracted to risk, else why the covenant for a mere release or quit claim deed? And why has not misrepresentation of title, some other species of fraud, or a failure of consideration in legal terms, been averred in the defence?

It is the opinion of the Court, that the judgment below be affirmed.

3 John. R. 484.

16 Ib. 48.

12 John. K. 436.

5 Litt. 347-.