H. T. & C. Co. v. Whitehouse

154 P. 950, 47 Utah 323, 1916 Utah LEXIS 69

• Court: Utah Supreme Court
• Decided: January 3, 1916
• Docket: No. 2746
• Status: Published

Opinion

McCARTY, J.

(after stating the facts as above).

There are numerous assignments of error. The only assignment, however, we deem of sufficient importance to consider is the one in which the findings of fact, conclusions of law, and the judgment are assailed, wherein it is held that Ettie Whitehouse is liable under the covenant of warranty contained in the deed from the Whitehouses to Theodore Schulte executed February 7, 1906.

1,2 Plaintiff’s evidence shows that Mrs. Whitehouse was not a party to the transactions leading up to and which culminated in the making of the contract under which the deed was executed, and that she was not known "at all in the transaction” prior to the execution of the deed. The evidence, without conflict, shows that she signed the deed merely as the wife of Jeremiah Whitehouse, and that she had no title to, or estate in, the land conveyed, except the contingent interest created by Comp. Laws 1907, Section 2826, which, so far as material here, provides:

“One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple if she survive him. ’ ’

The rule, as declared by the great weight of authority, seems to be that a covenant of warranty by one having neither possession of, nor title to, the land conveyed does not run with the land, and that the right to recover on the covenant belongs only to the grantee to whom it is made. In other words, a warranty by one who is a stranger to the title, and not in possession of the land conveyed, is a personal covenant and does not pass to - a subsequent grantee, except by assignment. In this case there was no assignment from Schulte to the plaintiff.

In Jones on Real Property, Section 942, the author says:

“A covenant will not run with the land unless there is either mutu-. ality or succession of interest. Privity of contract is sufficient between the immediate parties, but there must be privity of estate to carry the benefit of the covenant to subsequent owners of the property to which the covenant relates.” 11 Cyc. 1100; Mygatt v. Coe, 124 N. Y. 212, 26 N. E. 611, 11 L. R, A. 646; Mygatt v. Coe, 142 N. Y. 78, 36 N. E. 870, 24 L. R. A. 850; Pyle v. Gross, 92 Md. 132, 48 Atl. 713; Bull v. Beiseker, 16 N. D. 290, 113 N. W. 870, 14 L. R. A. (N. S.) 514.

We also invite attention to an instructive note in 14 L. R. A. (N. S.) 514, to the last case cited in which the annotator cites and reviews numerous decisions wherein the doctrine herein announced is upheld.

We are of the opinion, and so hold, that plaintiff, under the admitted facts, is not entitled to recover against Ettie White-house on her covenant of warranty to Schulte. The cause is therefore remanded, with directions to the trial court that, in case the plaintiff shall, within fifteen days after notice of the remittitur, file with the clerk of the court its consent in writing to a modification of the findings of fact, conclusions of law, and judgment to conform with the views herein expressed, the judgment will stand affirmed as to Jeremiah Whitehouse, each party to pay. his own costs on this appeal. Should plaintiff fail to file with the clerk of the trial court his consent in writing to a modification of the findings of fact, conclusions of law, and judgment within fifteen days after receiving notice of the remittitur, the trial court is directed to grant a new trial; appellants to recover their taxable costs on this appeal.

STRAUP, C. J„ and FRICK, J., concur.