Latham v. Morgan

1 S. & M. 611

• Court: Mississippi Chancery Courts
• Decided: December 15, 1842
• Status: Published

Opinion

Chancellor,

The bill in this case makes a general charge of defect of title, without stating in what particular it consists, or in whom the adverse or paramount title is vested. This is a fatal defect. The complainant is bound to set forth in what the defect of title consists, that the Court may determine whether it amounts to an actual defect or not. This objection to the bill, of itself, would demand a dissolution of the injunction. But the complainant is not entitled to the relief he asks, for another and distinct reason. He shows,, that he has received a deed with covenants of warranty, and his exhibits made a part of the bill, show also, that he was let into possession under his deed. No eviction, actual or threatened, is charged. Under such circumstances, the authorities are uniform, that he is not entitled to the interposition or aid of this Court. It is true, there is a charge of his belief of the insolvency of his vendors ; even if this insolvency were positively charged, under the repeated decisions of this Court, it would not be sufficient.

It is insisted, however, and assumed, that the deed containing the words “grant, bargain, and sell,” amount to a covenant of seisin, under the laws of Mississippi; that that covenant is here shown to have been broken, and that it is tantamount to an eviction at law, under the covenant of warranty ; which state of things would induce this Court to interfere.

I find that the same language used in our- statute, is used in the statutes of Pennsylvania, Delaware, Illinois, Indiana, Missouri, and Alabama, viz : that the words “ grant, bargain, and sell ” in conveyances in fee, shall amount to a covenant, “ that the grantor was seised of an estate in fee, freed from incumbrances done or suffered by him,” and for quiet enjoyment against his acts. Yet the Supreme Court of Pennsylvania, in 2 Binney’s Rep. 95, held, that those words did not amount to a general warranty, but, they were qualified to mean merely, that the grantor had not done any act, nor created any incumbrance, whereby the estate might be defeated; and to this extent only, I apprehend, would a sound construction of the statute of Mississippi go.

The precise language of the statute (How. & Hutch. 349, sec. 32) is, “ In all deeds or conveyances, whereby an estate of inheritance in fee simple shall hereafter be limited to the grantee and his heirs, the words ‘ grant, bargain, and sell’ shall be adjudged an express covenant to the grantee, his heirs, and assigns, to wit: that the grantor was seised of an indefeasible estate in fee simple, freed from incumbrances done or suffered from the grantor, as also for quiet enjoyment against the grantor, his heirs, and assigns.” To my mind, nothing can be plainer, than that these words do not amount to a general warrantee, and that their legitimate meaning cannot be extended further than to import, that the grantor has not incumbered the estate. The words are adjudged an express covenant of what ? That the grantor was seised of an estate, freed from incumbrances done or suffered by the grantor; and a covenant for quiet enjoyment by the grantee, as against the grantor, his heirs, and assigns. It extends no further. It embraces the claims of no others. I am not disposed to extend its construction, and interpret words, that bear no such meaning on their face, beyond what the strictest construction of the statute will justify.

The motion to dissolve the injunction must be sustained.