Woolley v. Newcombe

The complaint avers a conveyance by the defendant to the plaintiff, for a valuable consideration, of certain land in fee, by a deed containing a covenant that the grantor at the time of the delivery of the deed was seized in his own right, of a good, absolute and indefeasible estate of inheritance in fee-simple in the premises and good right, etc., to convey the same, and assigns as a breach that at the time, etc., the defendant was not the true owner, nor was he seized, etc., negativing the words of the covenant. The answer admits the execution of the deed and covenant, and denies all the other allegations of the complaint.

Qn the trial of the action the plaintiff put in evidence the deed, which1 showed that the consideration paid was $6,000’ and rested his case. The defendant, having introduced no evidence, moved for- a dismissal of the complaint, and the. plaintiff moved that a verdict be directed in his favor. The court dismissed the complaint.

The plaintiff claims that it is settled law that in an action for breach of a covenant of seizin the burden is upon the defendant to establish his title, and that he holds the affirmative of the issue. He is sustained in this view by Mr. Hawle in his work on Covenants for Title, and by the adjudications cited by the learned author. In the earlier editions of his work Mr. Bawle questions this rule, and remarks that it would seem contrary to general principles that a vendor who had given a covenant for seizin could be called upon, after the execution of the deed and at the caprice of the covenantee, to make out affirmatively a perfect title without a defect or some

The authorities by which this proposition- is supported are Marston v. Hobbs ( 2 Mass. 437 ); Swafford v. Whipple (3 Green [Iowa], 264); Schofield v. Iowa Homestead Co. ( 32 Iowa, 321 ); Baker v. Hunt ( 40 Ill. 266 ); Mecklem v. Blake ( 16 Wis. 102 ); Beckmann v. Henn (17 id. 412). It is also sustained by Potter v. Kitchen ( 5 Bosw. 566 ), and Abbott v. Allen ( 14 Johns. 248 ). The case last cited involved only the question of pleading, but the matter of -proofs was also referred to; and Platt, J., in delivering the opinion of the court, says that the marked distinction between a covenant of seizin and those for quiet enjoyment and general warranty consists in this, that the covenant of seizin if broken at all must be so at the very instant it is made; whereas, in the latter covenants the breach depends upon the subsequent disturbance and eviction; which must be affirmatively alleged and proved by the party complaining of the breach. A grantor who gives either of these covenants is not bound to deliver to his grantee the prior deeds and evidences of his title. Here the defendants covenanted that they had a good title. The legal presumption, therefore, is, that they retain or can produce the evidence of that title, if any. The grantee relied on that covenant, and until the grantors disclose their title he holds the negative, and is not bound to aver or prove any fact in regard to an .outstanding title.

The rule of pleading sanctioned by this case, and which

The only case to which we have been referred holding a contrary doctrine is Ingalls v. Eaton ( 25 Mich. 32 ), in which Cooley, J., declined "to follow the cases in Iowa and Wisconsin, and held that rules as to the form of common-law pleadings could not go far in determining upon whom was the burden of proof under the statutes of Michigan; that under those statutes the general issue was a complete denial of the plaintiff’s cause of action, and called upon him to prove it, and that consequently in an action in that State for breach of a covenant of seizin, where the plea was the general issue, the plaintiff was bound to prove in what respect the title was defective.

In general it was sufficient in declaring in an action for breacof covenant, to assign the breach generally by negativing the words of the covenant. (Marston v. Hobbs, 2 Mass. 437 ; Hancock v. Field, Cro. Jac. 170; Muscot v. Ballet, id. 369; 3 Saunders, 181 B.)

The defendant could plead non est factum, which put in issue only the execution of the deed and admitted the breach, or he could plead performance of the covenant; if he pleaded performance then it was for the plaintiff in his replication to aver specially in what point the defendant had failed to perform, as in Hamcock v. Field (Cro. Jac. 170), where it was held that in an action for breach of a covenant of a lessee to leave the premises in good repair, a declaration negativing the words of the covenant was sufficient, but that if the defendant pleaded that he did deliver up the premises at the end of the term in good repair, it was then incumbent upon the plaintiff in his replication to show in what point they were not in repair and the defendant could take issue on these allegations On pleadings thus framed the burden of proof of course rested upon the plaintiff. It was held, however, that in an action for breach of a covenant of seizin the plaintiff need not specify in what respect the title was defective, and this as has been before stated was put upon the ground that the knowledge of the title was with the defendant, the vendor. And the point decided in Abbott v. Allen ( 14 Johns. 248 ) was

The reason for thus permitting the plaintiff to drive the defendant to the affirmative of the issue in an action upon this particular covenant is to be found in the system of conveyancing prevalent in England when these rules were established. The owner of a landed estate depended for his title upon his title deed and muniments of title, these were not matters of public record but were accessible only to the owner of the estate who retained them in his possession. So where a party held a leasehold estate merely, it was in many cases impossible for him to show his title which depended upon the title of his landlord. Lord Eldon in Browning v. Wright (2 Bos. & Pul. 23) remarks: “ With regard to many estates in this town held under the Duke of Bedford and the Duke of Portland, it would be next to impossible to show any thing but the lease itself. The vendors could not produce the muniments of their estates, which are deposited in the family chests of those noblemen.” Where the owner of an estate sold the fee, the right to possession of the title deeds usually passed with it and a conveyance in fee-simple usually contained a grant of all deeds, evidences, writings, etc. (2 Hilliard on Real Property, 517.) But where avendor conveyed only a portion of his estate he retained his title deeds for his own security, and where in a conveyance of an estate the grantor gave a covenant of seizin or warranty the grantee was not entitled to the title deeds. (2 Hilliard on Real Property, 585 [4th ed.]; Yea v. Field, 2 Term Rep. 708; Hooper v. Ramsbottom, 6 Taunt. 14.) If the owner in fee sold without warranty the purchaser was entitled to the title deeds, etc., but if he sold with warranty he had a right to retain all deeds and evidences necessary to maintain his title. (Buckhurst's Case, 1 Co. Rep. 1 a.) It was to these rules that Platt, J., had reference in Abbott v. Allen ( 14 Johns. 248 ), where he said that a grantor giving cov

Under these customs and this state of the law, and before the recording acts it is easy to understand why it should be held that in an action on the covenants of seizin the vendor was bound to disclose his title. He was allowed to retain the evidences thereof for the very purpose of answering to these covenants. It is equally manifest that under our present system of conveyancing and making the title to real estate matter of public record as accessible to the vendee as to the vendor, the reason for the former rule entirely fails, and in this State it no longer has any foundation whatever to rest upon; and if the common-law system of pleading still prevailed the plaintiff, in replymg to a plea of seizin, would doubtless be reqidred to state as in other actions of covenant, the particulars of the breach, and thus assume the affirmative. An action of tMs description would no longer be an exception to the general rules of pleadmg.

Under the Code, however, no replication is necessary; issue is joined by the service of the answer. The defendant is not bound to set up in Ms answer performance of the covenant, but may put in a general denial, and this puts in issue the allegation of the breach of the covenant and throws upon the plaintiff the burden of proving it. There is nothing consequently either in the nature of the case or in the form of the pleadings which should throw upon the defendant the affirmative of the issue.

The complaint in this case is we think sufficient. The allegations that the defendant was not the true owner, and was not seized of the premises in fee, were allegations of matters- of fact.

It was not necessary to the sufficiency of the complaint that the title should be set out in detail. If the particulars of the defects complained of are required to enable the defendant to defend, they must be obtained in some of the modes provided by the Code.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.