Jacobs v. Fowler

Plaintiff’s right to recover depends upon whether the title which the defendants offered to convey to him on the 14th day of April, 1907, was a marketable one. Two objections are urged against it. The first is based upon the claim that the premises are subject to an easement in favor of the adjoining property. The said premises consist of the northerly 20 feet of a lot known as lot 109 on a map entitled “Map of Morris Park,” etc., and the southerly 20 feet of lot 110 on the same map. In 1903 H. Florence Plackett, who then claimed to be the owner of said lot 109, conveyed the same, together with lots 106, 107, and 108 on the said map, to Mary G. O’Hara and Regina O’Hara. In this deed the grantor reserved to herself, her heirs and assigns, “an easement for the use of two cesspools built on or about the rear line of said lots 109 and 108.” The trial court has found, and upon evidence which is quite sufficient, that neither of these cesspools was located upon that part of lot 109 which was to be conveyed to the plaintiff. If it be conceded that the portion of lot 109 upon which the cesspool and its connections are situated is subject to an easement in favor of the owner of adjoining properties, such easement creates no incumbrance upon that portion of the lot which the plaintiff agreed to purchase.

The second objection is based upon the claim that there is an outstanding interest in said land in favor of Jeremiah Watson Briggs, or his heirs, which will not be conveyed by the defendants’ deed. In 1876 the property belonged to one Jeremiah Briggs, who then died, leaving him surviving his widow, Jane R. Briggs and six children, Joseph L. Briggs, John S. Briggs, Mary R. Briggs, George S. Briggs, Jeremiah Watson Briggs, and Nina Briggs Fowler. He left a will by which, in the residuary clause thereof, he devised the premises in question. We might hesitate to follow the learned Special Term in holding that under said will Jeremiah Watson Briggs took no interest in the land in ques

The trial court found that the said Jeremiah Watson Briggs died intestate, unmarried, and without issue after the said sale in partition, and on or about the 24th day of September, 1884. We think that there was abundant evidence to sustain this finding. It appeared that he was born in the year 1834. It appeared that he was a man of somewhat dissipated habits, and at the time of his father’s death in 1876 he was an inmate of the Inebriate Asylum at Binghamton, N. Y. Subsequently, and'for some time prior to the 24th of September, 1884, he •had been residing in the South. At the time of the commencement of the partition suit he resided in Florida. In the summer of 1884 he was at Savannah, Ga. Letters were frequently received from him, dated' at that place, the last one of which, dated on the 30th of August, expressed a desire that he could enter a hospital somewhere. His family were in the habit almost weekly of sending him a small sum for his. personal use, and it would appear that he was largely dependent upon that for his support, as he stated in his letters that he could get no employment. About the 24th of September one of his brothers wrote to the postmaster of Savannah stating that he had weekly sent him letters and had received no reply, and asking if the letters had been delivered. Three letters were returned by the postmaster to the writer, with a statement that they had not been called for, and that the person-to whom they were addressed was dead and buried. Since then nothing has been heard from him by any member of his family. It is true that there is no positive evidence from any one who was present at his funeral, or even saw his body after death. But the fact of death must often -be proved by evidence of a different character and largely-hearsay. The fact that he was unmarried is likewise established by general reputation in the family, and in the absence of evidence to the-contrary the presumption would be that he died intestate.

If he had any interest, therefore, in the premises in question, which was not cut off by the judgment and sale in partition, it descended to-his mother for her life, with remainder to his then living brothers and sisters. These were Mary R. Briggs, Nina H. Fowler, and George S. Briggs. His brothers, John S. Briggs and Joseph L. Briggs, had previously died, the former before the judgment in partition was entered, and the latter subsequently thereto, but intestate, unmarried, and without issue. Jane R. Briggs, his mother, died February 28, 1889. In March, 1907, George S. Briggs and his wife by a quitclaim deed conveyed to Mary R. Briggs and Nina H. Fowler all of their right, title, and interest of,, in, and to any and all real estate of 'which Jeremiah

It is claimed, however, by the appellant, that inasmuch as in the chain of title through which the defendants claim to be the owners of the premises there is one deed which does not contain covenants of warranty, this rule does not apply. We think the contention is not well made. Before it is broken, a covenant of quiet possession or of warranty runs with the land. These covenants and the right of action upon them are assignable, and a conveyance of land by a bargain and sale, or even a quitclaim deed containing no covenants, operates to transfer such rights to the grantee named therein. Beddoe’s Executor v. Wadsworth, 21 Wend. 120 ; Hunt v. Amidon, 4 Hill, 345 , 40 Am. Dec. 283 ; Jenks v. Quinn, 137 N. Y. 223 , on page 230, 33 N. E. 376 ; Thomas v. Bland, 91 Ky. 1 , 14 S. W. 955 , 11 L. R. A. 240 . As was said in the last case:

“A covenant of warranty of title runs with the land, to which the vendee looks -as security against any defect in the title, and which is -transmitted to each successive purchaser; and the fact that a purchaser with this covenant sells the land to another person without his covenant of warranty does not restrict the latter’s right, so far as the previous warranty is concerned, to his immediate vendor. If the immediate vendor has a covenant of warranty, as it runs with the land, it is included in the sale of his title, notwithstanding the fact that he declines to warrant the title thus conveyed. This covenant of warranty is not conveyed by a succeeding covenant of warranty, but by the words of conveyance, and any words that convey the title convey the warranty that the vendor holds, because, as said, it runs with the land, and is transmitted by the conveyance.”

Inasmuch therefore, as Mary R. Briggs and Nina H. Fowler have acquired all the title, if any, of Jeremiah Watson Briggs which was not cut off by the judgment in partition and the sale had thereunder, and inasmuch as they originally conveyed the land with covenants of quiet possession and of warranty, which covenants have not been broken by the eviction of persons claiming under them through a paramount title, the title subsequently acquired by them will inure to the benefit, not only of their immediate grantee, but of each subsequent

It follows, therefore, that the deed tendered by the defendants to the plaintiff was sufficient to convey to him a good and marketable title to the premises described in it, and the judgment appealed from should be affirmed, with costs. All concur.