Scott, Judge.
The fourth section of the act concerning conveyances empowers any person claiming title to any real estate, notwithstanding there may be an adverse possession thereof, to sell and convey his interest therein in the same manner and with the like effect as if he was in the actual possession. It is conceived that this provision does away with that rule of the common law which required a grantor of land to be seized thereof, when he makes his. deed of conveyance, in order that his covenant of warranty may attach to and run with the land. This section was introduced to enable persons having claims to land without possession, or even in case of adverse possession, to alien such lands as though they were seized thereof.
But whilst the law thus enables individuals to dispose of their claims to real estate and thus to affect themselves by their conveyances, there is nothing which authorizes the courts or the officers of the law to sell or convey such claims. If there is no title nor any interest nor any possession in a judgment debtor, in cases without the influence of the regis[97]*97try laws, there is no power in the officer to sell a mere claim under an execution. There being nothing on which the sale can operate it is ineffectual for any purpose, and it is as though it had not been made. If the covenant is of value to the debtor, there are more appropriate ways of subjecting it to the claims of creditors than this, which must al-always result in a sacrifice, as few would be willing to buy a mere law suit. So there being no title nor estate nor interest in Warren at the date of the decree vesting title in the plaintiffs, that decree was wholly ineffectual. It could not operate on a thing not in existence. While a court of equity may make a deed bear date from a day that is past where there is an existing interest, yet, when there is no right nor title in a party at the date of the decree, the court can not make an effectual order vesting an interest as of a former day, there being nothing on which such a decree can operate. In such cases the court should, where it is proper to do so, entertain the petition to give the parties relief for the nonperformance of the contract by the defendant, or remit him to his action for damages for a violation of the agreement. In declaring the decree ineffectual it is not considered that it is at all impeaching or going behind it. While suffering the 'decree to stand, it is only showing that there is nothing on which it can operate; just as in the case of the sheriff’s deed it may be shown that there was no interest in the judgment debtor. In my opinion the judgment should be reversed.
Judge Richardson concurs in reversing the judgment.
Richardson, Judge.
I am in favor of reversing this judgment for the reason that the court improperly excluded the record of the proceedings and judgment in the suit of Warren v. Moore. In 1851, the Spanish title, which was confirmed July 4, 1836, was fully established by a judicial proceeding, and the Stoddards, who claimed under it, went- into possession, so that those who held under the New Madrid location were evicted, and there was a substantial breach of Moore’s covenant contained in his deed to Ashford. At that [98]*98time Moore was liable to some person for the full amount of the consideration named in his deed, and the question is, to whom was he liable and who was then in a condition to assert and maintain a right of action on the broken covenant? Ashford could not sue, for he had parted with all his interest in the land, and he could not use the covenants which ran with it without first satisfying the liability on his own covenants. (Rawle on Cov. 366.) Warren was the alienee of Ashford, and as such became the assignee of Moore’s covenants and had the fight of action against Moore, unless some other person had a better right; for Moore could only be made liable once for the same cause of action. If Moore suffered Warren to recover, when he could have defended the suit on the ground that Warren had no cause of action because he had assigned the covenant, that judgment would be no defence to this suit. Now it is certain that Warren had a right of action, unless the plaintiffs had; and they had not, because they had neither the legal title nor such an equity as entitled them at that time to be clothed with it. If, in 1851, Warren had merely the bare legal title, and the plaintiffs had a perfect equitable title, by which I mean that they had performed every condition to be performed on their part according to the terms of their contract of purchase and were only waiting for the formal execution of a deed to be invested with the legal title, they could have maintained the action against Moore, and for that reason Warren could not; but in 1851 they had not, if they yet have, paid to Warren all the purchase money, and it does not appear from their bill or in any other way that they had tendered that which remained due; and unless it then appeared that they had done all that was required of them, it could not be assumed that they ever would. Not having the legal nor such an equity as entitled them to it, they could not have sued Moore as assignees of the covenant; and, if they could not, Warren could, and the judgment in his favor is a bar to another suit. The fact that Moore, in the abundance of caution, took a bond of indemnity from Warren on the payment of the judgment is immaterial, [99]*99for, whether the judgment is a bar or not can not depend on any such circumstance.
The payment of the purchase money and the passing of the title are simultaneous acts and should be done interchangeably. (Marg. of Anspack v. Noel, 1 Mad. Ch. 175.) And though the decree of 1853 is manifestly unjust in directing a specific performance without seeing to the payment of the purchase money, it is not void on its face; and in my opinion if it had been rendered before there was any recovery on the covenant, it would have related back to a point of time before the eviction, and have operated to invest .the plaintiffs with all the rights incident to the assignment of a covenant before its breach. (3 Young & Coll. 505.) But the doctrine of relation is a fiction of law, and ought not to be allowed to work injustice ; and as Moore has once responded to a suit on his covenant, brought by a proper party, he is not liable to another.
Napton, Judge.
The first question discussed in this case is whether the plaintiffs became the assignees of Moore’s covenant of warranty by his purchase from Warren, so as to entitle them to this action. As it did not appear that Moore had any possession, and it did appear that he had no title when he sold to Ashford, it is argued that the covenant of warranty did not run with the land, and such appears to be the settled doctrine in several of the states. But our statute declares that “ any person claiming title to any real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest therein in the same manner and with like effect as if he was in the actual possession thereof.” If the same effect is to be given to a conveyance here, where there is an adverse possession, as if the possession was in the grantor, it would appear to follow that the like effect must be given to conveyances where there is no possession at all either in the grantor or adversely to him.
The principal difficulty in this case is in determining the effect of the decree of the circuit court in 1853. By that [100]
Free access — add to your briefcase to read the full text and ask questions with AI
Scott, Judge.
The fourth section of the act concerning conveyances empowers any person claiming title to any real estate, notwithstanding there may be an adverse possession thereof, to sell and convey his interest therein in the same manner and with the like effect as if he was in the actual possession. It is conceived that this provision does away with that rule of the common law which required a grantor of land to be seized thereof, when he makes his. deed of conveyance, in order that his covenant of warranty may attach to and run with the land. This section was introduced to enable persons having claims to land without possession, or even in case of adverse possession, to alien such lands as though they were seized thereof.
But whilst the law thus enables individuals to dispose of their claims to real estate and thus to affect themselves by their conveyances, there is nothing which authorizes the courts or the officers of the law to sell or convey such claims. If there is no title nor any interest nor any possession in a judgment debtor, in cases without the influence of the regis[97]*97try laws, there is no power in the officer to sell a mere claim under an execution. There being nothing on which the sale can operate it is ineffectual for any purpose, and it is as though it had not been made. If the covenant is of value to the debtor, there are more appropriate ways of subjecting it to the claims of creditors than this, which must al-always result in a sacrifice, as few would be willing to buy a mere law suit. So there being no title nor estate nor interest in Warren at the date of the decree vesting title in the plaintiffs, that decree was wholly ineffectual. It could not operate on a thing not in existence. While a court of equity may make a deed bear date from a day that is past where there is an existing interest, yet, when there is no right nor title in a party at the date of the decree, the court can not make an effectual order vesting an interest as of a former day, there being nothing on which such a decree can operate. In such cases the court should, where it is proper to do so, entertain the petition to give the parties relief for the nonperformance of the contract by the defendant, or remit him to his action for damages for a violation of the agreement. In declaring the decree ineffectual it is not considered that it is at all impeaching or going behind it. While suffering the 'decree to stand, it is only showing that there is nothing on which it can operate; just as in the case of the sheriff’s deed it may be shown that there was no interest in the judgment debtor. In my opinion the judgment should be reversed.
Judge Richardson concurs in reversing the judgment.
Richardson, Judge.
I am in favor of reversing this judgment for the reason that the court improperly excluded the record of the proceedings and judgment in the suit of Warren v. Moore. In 1851, the Spanish title, which was confirmed July 4, 1836, was fully established by a judicial proceeding, and the Stoddards, who claimed under it, went- into possession, so that those who held under the New Madrid location were evicted, and there was a substantial breach of Moore’s covenant contained in his deed to Ashford. At that [98]*98time Moore was liable to some person for the full amount of the consideration named in his deed, and the question is, to whom was he liable and who was then in a condition to assert and maintain a right of action on the broken covenant? Ashford could not sue, for he had parted with all his interest in the land, and he could not use the covenants which ran with it without first satisfying the liability on his own covenants. (Rawle on Cov. 366.) Warren was the alienee of Ashford, and as such became the assignee of Moore’s covenants and had the fight of action against Moore, unless some other person had a better right; for Moore could only be made liable once for the same cause of action. If Moore suffered Warren to recover, when he could have defended the suit on the ground that Warren had no cause of action because he had assigned the covenant, that judgment would be no defence to this suit. Now it is certain that Warren had a right of action, unless the plaintiffs had; and they had not, because they had neither the legal title nor such an equity as entitled them at that time to be clothed with it. If, in 1851, Warren had merely the bare legal title, and the plaintiffs had a perfect equitable title, by which I mean that they had performed every condition to be performed on their part according to the terms of their contract of purchase and were only waiting for the formal execution of a deed to be invested with the legal title, they could have maintained the action against Moore, and for that reason Warren could not; but in 1851 they had not, if they yet have, paid to Warren all the purchase money, and it does not appear from their bill or in any other way that they had tendered that which remained due; and unless it then appeared that they had done all that was required of them, it could not be assumed that they ever would. Not having the legal nor such an equity as entitled them to it, they could not have sued Moore as assignees of the covenant; and, if they could not, Warren could, and the judgment in his favor is a bar to another suit. The fact that Moore, in the abundance of caution, took a bond of indemnity from Warren on the payment of the judgment is immaterial, [99]*99for, whether the judgment is a bar or not can not depend on any such circumstance.
The payment of the purchase money and the passing of the title are simultaneous acts and should be done interchangeably. (Marg. of Anspack v. Noel, 1 Mad. Ch. 175.) And though the decree of 1853 is manifestly unjust in directing a specific performance without seeing to the payment of the purchase money, it is not void on its face; and in my opinion if it had been rendered before there was any recovery on the covenant, it would have related back to a point of time before the eviction, and have operated to invest .the plaintiffs with all the rights incident to the assignment of a covenant before its breach. (3 Young & Coll. 505.) But the doctrine of relation is a fiction of law, and ought not to be allowed to work injustice ; and as Moore has once responded to a suit on his covenant, brought by a proper party, he is not liable to another.
Napton, Judge.
The first question discussed in this case is whether the plaintiffs became the assignees of Moore’s covenant of warranty by his purchase from Warren, so as to entitle them to this action. As it did not appear that Moore had any possession, and it did appear that he had no title when he sold to Ashford, it is argued that the covenant of warranty did not run with the land, and such appears to be the settled doctrine in several of the states. But our statute declares that “ any person claiming title to any real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest therein in the same manner and with like effect as if he was in the actual possession thereof.” If the same effect is to be given to a conveyance here, where there is an adverse possession, as if the possession was in the grantor, it would appear to follow that the like effect must be given to conveyances where there is no possession at all either in the grantor or adversely to him.
The principal difficulty in this case is in determining the effect of the decree of the circuit court in 1853. By that [100]*100decree all the right, title and interest of Warren, which he had in September, 1847, (the date of his sale to the plaintiffs,) was divested out of Warren and vested in the plaintiffs “ as fully and effectually as the same might or could have been conveyed to the said complainants by a quit claim deed therefor executed by said defendant to said complainants on the said 24th day of September, 1847.” The decree was unconditional, absolute, without regard to the payment of the purchase money, and attempted to convey the title as a deed would in 1847.
The doctrine of relation is a fiction of law, and ought never to be allowed to work injustice. If the defendant Moore can be injured by antedating the deed from Warren to the plaintiffs, the decree should not be permitted to have a retroactive operation. Moore was sued by Warren on this same covenant in 1852 and a recovery had against him for the purchase money and interest. Previously to this suit Warren had sold to the plaintiffs, and if he had also executed a conveyance- then Moore could have defeated the action by showing Warren’s conveyance. It seems to be settled that where an intermediate covenantee has parted with all his interest in the land, he has no right to use the covenants which run with it, and it is only where he has been made liable upon his own covenants and satisfied that liability that he can maintain his action against the original covenantor. But Warren had not made a deed in 1852 when he sued Moore on his covenants; he had agreed to convey to the plaintiffs, and their title bond was on record. Moore then had constructive notice of the outstanding equity of the plaintiffs. The suit for a specific performance had also been instituted and this lis pendens was also a notice to Moore. His taking an indemnifying bond from Warren to secure himself against his supposed liability to the plaintiffs implies that he had actual notice of this equity. Moore might have required an interpleader to determine the proper party to whom he was liable; he virtually did so by taking the indemnifying bond given in evidence in this case. I am constrained there[101]*101fore to regard this action as substantially one against Warren, and can therefore see no impropriety in letting the decree have all the effect by relation which it seems to have been intended to carry with it.
The manifest injustice of the decree for specific performance without seeing to the paying of the purchase money is not a matter which can affect this case. That decree has not been appealed from, nor any proceeding instituted by which its validity can be questioned. Its merits are not a matter of inquiry here.
At the date then of the decree, taking it to relate back to 1847, no breach of the covenant of warranty in the deed from Moore to Ashford had occurred, and the plaintiffs were the equitable owners of the covenant, and of this fact the defendant had actual and constructive notice. What might have been the rights of Moore under these circumstances if he had taken no protection from Warren against any contingent liability to the plaintiffs, it is not important to determine. He did take such, steps in thlRlction brought against him by Warren ás to arrest the transfer of the damages to the plaintiff in that action until the controversy between him and the plaintiffs could be adjusted, thereby recognizing the equitable claim of the plaintiffs and the necessity of protecting himself against its possible perfection into a legal title.
As the eviction pr'oved in this case was a mere abandonment of possession to the paramount title, and the title or rather the recovery relied upon to show this eviction went only to a part of the land, it was contended that the court should have directed an apportionment of the damages. But the record showed that the title under which plaintiffs held was entirely swept away by the Spanish claim held by Stod-dard’s heirs, although the judgment in the particular case referred to went only to a part of that title.
The measure of damages in a breach of a covenant of warranty is the purchase money and interest. This is not disputed, but it is suggested that the rents and profits should be considered an equivalent for the interest until an eviction oc[102]*102curred, and this principle is an equitable one where the land is of a character that will yield rents and profits. As the land sold in this case was admitted to be unimproved in any way, the rule will not apply, and the instruction of the court upon this subject was correct.