The Court:
We are satisfied with the views expressed when the case was considered by Department One, and adopt the opinion delivered by the Department as the opinion of the Court in Bank. The case of Taylor v. Warnaky, 55 Cal. 350, cited by appellant, does not apply. James McElroy was only the owner of an undivided sixth of the land over which the right of way is claimed, at the time of his conveyance to the plaintiff, nor did the entire estate ever vest in him or his heirs.
Judgment affirmed.
The following is the decision of Department One referred to:
McKinstry, J.:
The complaint alleges that, on the twenty-seventh day of October, 1867, James McElroy, since deceased, in consideration of the sum of seven hundred dollars, paid to him by plaintiff, did, by his deed of that date, grant, bargain, sell, alien, remise, release, convey and confirm unto plaintiff, his heirs, executors, administrators—all that certain parcel of [492]*492land situate in the City and County of San Francisco, particularly described as follows: “Commencing on the southeasterly line of Minna street at a point distant one hundred and sixty feet eight inches northeasterly from the northeasterly line of Tenth street; thence running northeasterly along said line of Minna street twenty-two feet eight inches; thence at right angles southeasterly eighty feet; thence at right angles southwesterly twenty-two feet eight inches; and thence at right angles northwesterly eighty feet to said southeasterly line of Minna street at the point of commencement; together with the right of way in, upon, and over a street thirty-five feet in width, called Minna street, running from Tenth street to the southwesterly line of the lot of land thereby conveyed (to wit, said last described parcel of land); said street forever to be and remain free and open as a public street.”
The complaint further shows that at the time the said James McElroy sold and conveyed as above, he was in possession and seised in fee “ to the extent of one undivided sixth part “ of a tract of land over and through which the way— Minna street—was to be kept open (as by McEIroy’s “ covenant”) from Tenth street to a transverse line running across the proposed Minna street, eleven feet four inches distant northeasterly from the line of the lot so as above sold and conveyed by James McElroy to plaintiff; and that, for the said distance of eleven feet four inches, the said James McElroy was, at the time of said sale and conveyance, the sole owner of the land through which the proposed Minna street was to run.
The complaint further alleges that after the death of James McElroy, and before the estate of the said James McElroy was distributed, one John McDermott, one of the tenants in common in the tract of land in which James McElroy, in his life-time was so, as aforesaid, the owner of an undivided one sixth part, instituted an action in the District Court of the Nineteenth Judicial District for said city and county, against all of the tenants in common of said tract (including the defendants herein, who are the widow and children and lawful heirs of James McElroy, deceased), and that such proceedings were had therein, that a final decree of partition was made; [493]*493that by said decree a tract of land, which includes the proposed Minna street for a distance of sixty-three feet six inches (immediately adjoining to and to the northerly of the eleven feet four inches exclusively owned by said James McElroy in his life-time) was assigned and allotted in severalty to the defendants in the present action, as the part and share of said tract to which the heirs of said McElroy were entitled in severalty.
The complaint further alleges that at the time of the conveyance by James McElroy to plaintiff, seven hundred dollars (the. consideration therein named) was the full, fair, and just value of the land conveyed, with said street and right of way conveyed therewith, as aforesaid, but without such street and right of way said land was not worth said sum, and was wholly without means or way of ingress or egress from or to any public street or highway.
That, January 17,1871, said James McElroy died intestate in said city and county whereof at the time of his death he was resident, leaving real and personal estate situate therein, and leaving him surviving defendant Susan McElroy, his widow, and the other defendants, his surviving children and lawful heirs; that upon petition and proceedings regular thereupon, and February 3,1871, the Probate Court fo^ said city and county duly granted letters of administration upon the estate of said deceased to said Susan, widow as aforesaid, who duly qualified and entered upon the discharge of her duties as administratrix; that due notice to creditors and claimants was had, etc. And afterwards, on January 27, 1876, by decreee of said Probate Court, the estate of said James McElroy, deceased, was distributed as follows, to wit: To Susan McElroy one third part, and to defendants Annie M. Jennie, Emma Mary E., and James P. McElroy, each two undivided fifteenth parts of the following real estate—(describing two tracts, one tract being the tract herein referred to as including eleven feet four inches of the proposed Minna street, and the other being the tract set aside to the widow and heirs of the said James McElroy, deceased, by the decree of partition).
The complaint also alleges that on January 2,1876, Susan McElroy was, by the decree of said Probate Court, finally [494]*494discharged from her.office.of administratrix, and administration of the estate.closed, and that all the property of which James McElroy died seised was community" property of -the said .James-and his wife, the said Susan. , Further, that defendants, since the decree of distribution, have remained owners respectively of the land distributed to them. The complaint, further avers that at the time of the execution of said deed of conveyance by said James McElroy to plaintiff, "said Minna street was not an open public street or highway, extending .from the parcel of land conveyed as aforesaid, to Said Tenth street, or for any part of that distance; or at all, and there is not and never has been any Minna street, or any street or way at all, in, upon, over, or along the whole or any part of said Minna street, as in said deed is described, and agreed forever to remain an open public street; but although there is not and never was any Minna street, as last stated, the property owners adjoining said parcel of land suffered and permitted plaintiff to freely pass over their lands to said parcel: of land of plaintiff; and from thence to the. public highway, up to within the past three or four months;” that since he has been forbidden ingress and egress from'his land to the public streets and highways of the city, he has requested defendants to open said Minna street as in said deed described, or otherwise to afford plaintiff means of. ingress and egress, but said defendants, although often requested, have refused, etc;
The special prayer is, that the defendants be- compelled - specifically to perform said covenant, and to open said Minna street to the extent and in the. manner in said deed of conveyance described; and this is followed—in the event of the granting of the specific prayer not being practicable—by the general prayer that plaintiff have such other and further relief as shall seem meet, with costs, etc;.
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The Court:
We are satisfied with the views expressed when the case was considered by Department One, and adopt the opinion delivered by the Department as the opinion of the Court in Bank. The case of Taylor v. Warnaky, 55 Cal. 350, cited by appellant, does not apply. James McElroy was only the owner of an undivided sixth of the land over which the right of way is claimed, at the time of his conveyance to the plaintiff, nor did the entire estate ever vest in him or his heirs.
Judgment affirmed.
The following is the decision of Department One referred to:
McKinstry, J.:
The complaint alleges that, on the twenty-seventh day of October, 1867, James McElroy, since deceased, in consideration of the sum of seven hundred dollars, paid to him by plaintiff, did, by his deed of that date, grant, bargain, sell, alien, remise, release, convey and confirm unto plaintiff, his heirs, executors, administrators—all that certain parcel of [492]*492land situate in the City and County of San Francisco, particularly described as follows: “Commencing on the southeasterly line of Minna street at a point distant one hundred and sixty feet eight inches northeasterly from the northeasterly line of Tenth street; thence running northeasterly along said line of Minna street twenty-two feet eight inches; thence at right angles southeasterly eighty feet; thence at right angles southwesterly twenty-two feet eight inches; and thence at right angles northwesterly eighty feet to said southeasterly line of Minna street at the point of commencement; together with the right of way in, upon, and over a street thirty-five feet in width, called Minna street, running from Tenth street to the southwesterly line of the lot of land thereby conveyed (to wit, said last described parcel of land); said street forever to be and remain free and open as a public street.”
The complaint further shows that at the time the said James McElroy sold and conveyed as above, he was in possession and seised in fee “ to the extent of one undivided sixth part “ of a tract of land over and through which the way— Minna street—was to be kept open (as by McEIroy’s “ covenant”) from Tenth street to a transverse line running across the proposed Minna street, eleven feet four inches distant northeasterly from the line of the lot so as above sold and conveyed by James McElroy to plaintiff; and that, for the said distance of eleven feet four inches, the said James McElroy was, at the time of said sale and conveyance, the sole owner of the land through which the proposed Minna street was to run.
The complaint further alleges that after the death of James McElroy, and before the estate of the said James McElroy was distributed, one John McDermott, one of the tenants in common in the tract of land in which James McElroy, in his life-time was so, as aforesaid, the owner of an undivided one sixth part, instituted an action in the District Court of the Nineteenth Judicial District for said city and county, against all of the tenants in common of said tract (including the defendants herein, who are the widow and children and lawful heirs of James McElroy, deceased), and that such proceedings were had therein, that a final decree of partition was made; [493]*493that by said decree a tract of land, which includes the proposed Minna street for a distance of sixty-three feet six inches (immediately adjoining to and to the northerly of the eleven feet four inches exclusively owned by said James McElroy in his life-time) was assigned and allotted in severalty to the defendants in the present action, as the part and share of said tract to which the heirs of said McElroy were entitled in severalty.
The complaint further alleges that at the time of the conveyance by James McElroy to plaintiff, seven hundred dollars (the. consideration therein named) was the full, fair, and just value of the land conveyed, with said street and right of way conveyed therewith, as aforesaid, but without such street and right of way said land was not worth said sum, and was wholly without means or way of ingress or egress from or to any public street or highway.
That, January 17,1871, said James McElroy died intestate in said city and county whereof at the time of his death he was resident, leaving real and personal estate situate therein, and leaving him surviving defendant Susan McElroy, his widow, and the other defendants, his surviving children and lawful heirs; that upon petition and proceedings regular thereupon, and February 3,1871, the Probate Court fo^ said city and county duly granted letters of administration upon the estate of said deceased to said Susan, widow as aforesaid, who duly qualified and entered upon the discharge of her duties as administratrix; that due notice to creditors and claimants was had, etc. And afterwards, on January 27, 1876, by decreee of said Probate Court, the estate of said James McElroy, deceased, was distributed as follows, to wit: To Susan McElroy one third part, and to defendants Annie M. Jennie, Emma Mary E., and James P. McElroy, each two undivided fifteenth parts of the following real estate—(describing two tracts, one tract being the tract herein referred to as including eleven feet four inches of the proposed Minna street, and the other being the tract set aside to the widow and heirs of the said James McElroy, deceased, by the decree of partition).
The complaint also alleges that on January 2,1876, Susan McElroy was, by the decree of said Probate Court, finally [494]*494discharged from her.office.of administratrix, and administration of the estate.closed, and that all the property of which James McElroy died seised was community" property of -the said .James-and his wife, the said Susan. , Further, that defendants, since the decree of distribution, have remained owners respectively of the land distributed to them. The complaint, further avers that at the time of the execution of said deed of conveyance by said James McElroy to plaintiff, "said Minna street was not an open public street or highway, extending .from the parcel of land conveyed as aforesaid, to Said Tenth street, or for any part of that distance; or at all, and there is not and never has been any Minna street, or any street or way at all, in, upon, over, or along the whole or any part of said Minna street, as in said deed is described, and agreed forever to remain an open public street; but although there is not and never was any Minna street, as last stated, the property owners adjoining said parcel of land suffered and permitted plaintiff to freely pass over their lands to said parcel: of land of plaintiff; and from thence to the. public highway, up to within the past three or four months;” that since he has been forbidden ingress and egress from'his land to the public streets and highways of the city, he has requested defendants to open said Minna street as in said deed described, or otherwise to afford plaintiff means of. ingress and egress, but said defendants, although often requested, have refused, etc;
The special prayer is, that the defendants be- compelled - specifically to perform said covenant, and to open said Minna street to the extent and in the. manner in said deed of conveyance described; and this is followed—in the event of the granting of the specific prayer not being practicable—by the general prayer that plaintiff have such other and further relief as shall seem meet, with costs, etc;.
To the complaint the defendants,- severally, demurred on the ground that the same did not state facts sufficient to constitute a cause of action.
The District Court sustained the demurrer,"and the complaint not being amended, final judgment was rendered and entered that plaintiff take nothing by his action, and that defendants have and recover their costs, etc.
[495]*495This appeal is from the judgment.
Many curious and interesting questions are suggested by the demurrer, some of which were argued with much force and ingenuity. But in the view, we take of the case—even if appellant is entirely right with respect to the positions by him assumed—the demurrer was properly sustained. The conveyance from James McElroy to plaintiff is not set out at length in the complaint. The averment at the commencement of the pleading is that “James McElroy, since deceased, did, by his deed of a certain date, bargain, sell, etc., unto plaintiff, his heirs,” etc. Nowhere in the complaint is there an averment that James McElroy ever attempted to bind his heirs by any covenant. The words “said street forever to be and remain free and open as a public street”—if they constitute any covenant—are either a covenant of seisin—in which case there was a breach so soon as the covenant was executed (since the grantor had no title to the right of- way, nor any which could affect the rights of his co-tenants in the lands, over which the way was to run)—or they were a covenant in the nature of warranty, or for quiet enjoyment, in which case the covenant was not broken, until the assertion of paramount adverse and legal right. If the words quoted aro a covenant of seisin, on which the covenantor became liable when the deed was executed, the claim for the breach should have been presented to the administratrix of the estate of James McElroy. As the law stood when the deed was executed, and at the death of the covenantor, the heirs became answerable upon the covenant to the extent of the land descended to them “in the ease and in the manner prescribed by law.” (Stat. 1855, p. 171.) Both the real and personal property of a decedent were made liable by our law for the satisfaction of all claims or demands existing against the deceased at the time of his death. To reach the assets of the estate, however, the claim had to be presented as required by the provisions of the Code of Civil Procedure relating to the settlement of the estates of deceased persons. (Hartman v. Lee, 30 Ind. 281.)
If, on the other hand, the words cited from the deed are to be construed as a covenant to warrant and defend covenantee in the enjoyment of the right of way against all lawful objec[496]*496tors, or that covenantee quietly enjoy the use thereof undisturbed by any lawful obstruction, and the breach occurred after the death of covenantor, (and assuming the question not to be affected by any statute of this State), the heirs are not bound unless the deceased expressly covenanted that they should be bound. At common law to make the heir responsible it was essential that he be expressly named in the bond or covenant of his ancestor. (2 Wait’s Actions and Defenses, 397.) And in an action against him as heir an averment was necessary that he was named in and bound by the bond or covenant. Such was the rule as to the ancient warranty. (Rawle on Covenants for Title, 4th ed., 461; Co. Litt. 384.) “If a covenantor covenants for himself and his heirs, the heirs are bound to perform it.” (2 Bla. Com. 304.) “A covenant may be real, having for its object something annexed to or inherent in, or connected with land or other real property; although it may be purely personal to the covenantor, and his personal representatives, because he has omitted to name his heirs.” “A covenant, though clearly personal, or relating to personalty, may be a covenant real, because the heir being named, will be liable in respect of assets by decedent,” etc. (Platt on Covenants, 63.) To create liability on the part of the heir it is requisite that the terms of the covenants specially provide for its performance by him. (Id. 449.)
In the complaint before us it is not stated, even by way of recital, that James McElroy covenanted that his heirs should, be bound. The word heirs was not necessary under our statute to create or convey an estate in fee simple. (Stats. 1855, p. 171.) But there was no statute which made the lands descended to the heir liable for the covenants of the ancestor except the statute, which applied all assets to the payment of decedent’s debt—through the machinery of the Probate Court. The very basis of plaintiff’s claim here is that the probate law does not affect his right to maintain the present action.
Ross and McKee, JJ., concurred.