Mygatt v. Coe

It is our duty to follow and abide by the decision

Our brethren of the second division disagreed among themselves, Myg att v. Coe, 124 N. Y. 212 ; 35 St. Rep. 289 , as was not strange in view of the fact that the' question brought to their judgment a judicial quarrel almost as venerable as the common law itself, and open yet to vigorous dispute. Rawle on Covenants for Title [5th ed.], § 203, note 2. The majority of the court held; that privity of estate is essential to carry covenants of warranty to subsequent grantees so as to support a right of action by them against the original covenantor whenever evicted by a title paramount to his; that a covenant of warranty made by one having neither title nor possession, and so no estate in the land, will not run with it into the hands of subsequent grantees, but will stop where the priority of contract ends, and so at the first or original covenantee; and that the covenant of Coe, the husband, upon which this action is founded, was that of a stranger to the title, an independent and collateral warrantor, having and transferring no estate in the land, and so in no sense or degree a privy in estate with the subsequent grantees. The point of the decision is emphasized and made clear by the dissent of the minority. They advocated the doctrine that privity of estate is not always essential to carry the covenant down the line of successive grantees, and that one who conveyed nothing but covenanted much, like the prior of the convent who promised perpetual song to the manor chapel, might find his covenant attached to the land and running with it into the hands and for the benefit of successive owners; but while holding and defending this doctrine, Judge Bradley, who wrote the dissenting opinion, did not press the point, or rely upon it as the ground of ultimate decision, but insisted that Coe, the covenantor, was not a stranger to the title because he joined with his wife as a grantor, and assumed to unite with her in transferring to Mrs. Fisher the estate which actually passed. The precise point of disagreement was thus over the attitude and and position of the husband in making the conveyance; and the decisive question became whether he did or did not transfer an estate, some estate, to which his covenant could attach, and run with it down the line of transfer. The facts which dictated the

But now three such facts make their appearance in the findings, and force from us a different inference. Befering to the deed from Coe and his wife to Mrs. Fisher, the tenth finding of fact is as follows : “ That when the said conveyance was so made and delivered the defendant was in possession of the said real property, consisting of a plot of land with a dwelling house thereon, being there domiciled and residing with his family and the eleventh finding is: “ That upon the execution and delivery of the said premises, and surrendered the same to the said grantee, who thereupon went into possession of the same.” We do not and cannot know upon what proof or upon what facts these findings were based, for none of the evidence given is contained in the record. We are obliged to assume that sufficient and competent proof produced them, and that they are in all respects strictly true. Nor can we narrow or modify them by recurring to the form of the convenant and of the deed running to Mrs. Coe alone. At best these only raised certain presumptions existing from the absence of any contrary facts. Coe’s covenant that his wife was seized, justified the presumption that he had no possession, and the maxim that possession follows the deed is expressive only of the presumption which the law raises when there is no proof of the actual facts. Frantz v. Ireland, 66 Barb. 389 . But these presumptions

A second fact now appears, the absence of which was noted in-the prior decision. The answer of the defendant alleges that no consideration was paid to or received by him for “uniting with his wife” in the deed to Mrs. Fisher. But he did not prove that allegation on the trial, for there is no finding of that fact, and not even a request to find it. On the contrary, the deed which he executed is now transcribed in the findings, and it contains the explicit admission that the consideration of eighteen thousand five hundred dollars was “to them in hand paid,” that is, to the two parties, to the husband and wife both.

At this stage of the case the facts stood thus : That at the date of the conveyance to Mrs. Fisher neither Ooe nor his wife had a valid title to the land; that he was in possession and his wife occupied the premises with him ; that she had color of title but he not even that; that the two assumed as joint grantors to con'vey the land to Mrs. Fisher ; that Coe delivered the possession to her, which was the only estate which either grantor had or which they could convey, and that Coe shared in the purchase money paid for the grant. On that state of facts I do not see how it is pos

But before pausing upon that proposition I should bring into the discussion the third new fact •which makes its appearance for the first time. That is, that in and by the deed, Coe explicitly, and in terms, covenanted not only with Mrs. Fisher, but with her “heirs and assigns.” In other words; he meant and intended his covenant to protect not only her, but also those who should come after her by succession to the ownership of the same land. The significance of those words will better appear if we refer back to the early history of these covenants. Originally, the common law did not permit the assignment of things in action, and it followed that a. covenant, regarded from the direction of a contract, could not pass beyond the covenantee. But the old warranty seems to have been viewed rather as an incident of, and as belonging to the estate coveyed, and so attached to that estate as to go with it when transmitted. It could not pass to assigns as an independent contract, but by its connection with an estate in land, became transmissible with it. Out of that peculiarity sprang the necessity of privity of estate to enable the subsequent assignee to vouch, or call on his predecessor for protection; but it was an element of the doctrine that neither the heir nor the the assign of the grantee could take advantage of the warranty unless expressly named. Bawle, § 203. As was said, if one “warrant land to a man and his heirs without naming, assigns, his assignee shall not vouch.” Co. Litt. 384 b. That rule was not applied when the warrantor, instead of substituting other lands, became bound only to respond in damages; but while the necessity has disappeared, the actual use of the words continues to indicate the purpose and intent of the warrantor that his covenant shall not stop with the covenantee, but operate for the benefit of his grantees; and though the use of the words, possibly, may not dispense with some privity of estate, they show that the warrantor regarded himself as making and intending to make a covenant running with the land, and that in holding him to that responsibility we do not put upon him a liability which he did not ■contemplate. The force belonging to such words is indicated in many recent cases, Nye v. Hoyle, 120 N. Y. 203 ; 30 St. Rep. 571 ; Coleman v. Bresnahan, 54 Hun, 622 ; 28 St. Rep, 208 ; Hart v. Lyon, 90 N. Y. 663 ; and while they are more important and bear more heavily upon the theory that a covenantor having no estate, may by his own special and intended contract, attach his covenant of warranty to the estate of another so as to run with that estate, yet they ai’e entitled to weight and consideration also upon the narrower inquiry whether the defendant here is or is not to be deemed an entire stranger to the title, and they yield an inference which balances somewhat that drawn from the covenant of seizin.

And thus it is apparent that the facts in the present record differ in material and essential respects from those presented on the previous appeal. It is certainly the law of this state that one ■in possession of land merely, without other actual title, has an es

Mrs. Fisher, in December of 1869, mortgaged the premises conveyed to her by Coe and wife to the trustees of Sarah M. Mygatt, and in 1871 conveyed the property to Fuller, who in turn conveyed it to Clara B. Leavitt by deed dated in 1874. In November of 1878 the true owners, in an action of ejectment; evicted Mrs. Leavitt and went into possession. In the following December suit was brought ón the Mygatt mortgage for a foreclosure, and orí the sale in 1879 the mortgagees became purchasers and received the referee’s deed. Since the covenants ran with the land, and those of them which were prospective were not broken and turned into mere rights of action until after the delivery of the mortgage to the Mygatt trustees, and the deed of the equity of redemption to Fuller and Mrs. Leavitt, it becomes necessary to determine to whom the covenants ran'as between the mortgagees on the one hand and the grantees of the mortgagor on the other. That has been sometimes a difficult and troublesome question, and logically is so yet, although I deem it substantially settled. Under the old system which regarded the mortgage as transferring to the mortgagee the entire legal estate, leaving in the mortgagor only an equity which courts of law could not recognize, it was necessary to say and was said that the covenants running with the land followed the legal estate into the hands of the mortgagee where it remained entire and complete, and the grantees of the equity having no legal estate could have no right to the covenants which already belonged to another. It was so held in Mayor of Carlisle v. Blamire, 8 East, 487, but the injustice of the doctrine drew upon the ingenuity of equity to supply a remedy, and where the grantee holding covenants had executed a mortgage, and thereafter having been evicted from the premises by a paramount title, his grantor and covenantor settled with the mortgagee by paying the mortgage in full discharge of the covenants and so assuming to cancel them, the grantee was allowed by a decree in equity to sue the covenantor at law, and the latter was restrained from setting up as a defense

Whether, without that, the covenantor would still be bound upon the theory that by his contract he consciously and intentionally attached his covenants to the land of his wife, and privity of estate with the original covenantee alone is sufficient, it is not necessary at present to decide.

The judgment should be reversed and a new trial granted, costs to abide the event

J udgment reversed.

All concur.