Opinion
(June Term, 1841.)
1. An action may be sustained, under our act of Assembly, Rev. St., ch. 31, sec. 89, against any one or more of the joint obligors in a covenant of warranty contained in a deed for the conveyance of land for a breach of such covenant.
2. That act is not confined to contracts for the payment of money merely.
3. Persons owning land in common, and conveying it, need not be liable for each other in their covenants; as they may make several conveyances, or in the same deed may covenant severally, each one for himself and for his share.
COVENANT, tried at Spring Term, 1841, of BUNCOMBE, before Battle, J.
No counsel for either party.
The covenant declared on was a covenant for quiet enjoyment, contained in a deed for land, executed by the defendants and several others, to the plaintiff. Several of the covenantors were married women, and, upon the trial, the deed, appearing not to have been properly proved and registered as to them, the counsel for the plaintiff moved for leave to enter a nolle prosequi as to them and their husbands. A juror was thereupon withdrawn, and the nolle prosequi entered; and the defendants were then permitted to file a plea in abatement, nunc pro tunc, that the covenant was joint and single, and that the suit ought to have been brought against all the covenantors, or a single one only, and could not be sustained against two. To this plea the plaintiff demurred and argued that by section 89 of Rev. Stat., ch. 31, the suit might be sustained against any one or more of the covenantors; but the court, being of opinion that the act in question did not apply to cases of this kind, overruled the demurrer and sustained the plea. The plaintiff thereupon appealed. (418)
This is an action of covenant, brought against Nathan Fletcher, John Fletcher, Elizabeth Fletcher, and Jacob Rhodes, for the breach of a covenant of general warranty, contained in a deed of bargain and sale, made by them to the plaintiff. The defendants pleaded in abatement the nonjoinder of James Fletcher, Elizabeth Rhodes, wife of the defendant Jacob, and John Pack and his wife, Mary Pack, by whom also the deed was executed jointly with the defendants; and to this plea the plaintiff demurred generally. The record contains an admission that the femes covert had not been privily examined as to the execution of the deed by them; and also an agreement that no objection should be taken to the form of the plea, but that it shall be sustained, if upon the facts, or any of them, a good plea could have been framed. It is not material, therefore, to consider the effect of the pleas embracing the married women, as having executed the deed when they certainly did not, since the deed was executed by James Fletcher and John Pack, and the plea must, under the agreement, be sustained, if those two persons ought to have been made defendants.
His Honor was of opinion that the case was not within the Revised Statutes, ch. 31, sec. 89, which authorizes "in all cases of joint obligations or assumptions of copartners or others, suits to be brought against the whole or any one or more of the persons making such obligations, assumptions, or agreements"; but that suit must be brought against all the covenantors, or against a single one only. The plea was therefore sustained, and a judgment given thereon for the defendants, from which the plaintiff appealed.
As the covenant is, according to its terms, joint and not joint and several, it would at common law have been necessary to sue all the parties, or all those living. It is, however, admitted by his Honor, (419) and properly, as we think, that several actions would lie against each of the covenantors. This could only be by force of the act of 1789, ch. 314, in the fourth section of which it is provided, first, that a joint debt or contract shall survive against the heir or executor of a deceased obligor; and, secondly, that on joint obligations or assumptions of copartners or other suits may be brought in the same manner as if such obligations or assumptions were joint and several. It is true that under the latter branch of that act an action would only lie against one or all of the joint contractors, and not against any intermediate number of them. But it was corrected by the act of 1797, ch. 475, sec. 2, which forms section 89 of chapter 31 of Revised Statutes, before quoted. That not only uses the words "obligations and assumptions," found in the act of 1789, but adds the broader term, "agreements," and provides that suits may be brought "against the whole or any one or more of such persons making such," that is, joint "obligations, assumptions, or agreements." It is thus quite apparent that this case is within the letter of the statute. Being so, the act must, we think, govern it. In interpreting it, we cannot stop short of the meaning which is plainly imported by the language of the act. On the contrary, the acts of 1789 and 1797 have been looked on as being of the nature of statutes for the amendments of the law, and been construed with the liberality to which remedial statutes are entitled. Thus, in Smith v. Fagan, 13 N.C. 298, it was, in accordance with the previous decisions there cited, held that a judgment, upon the death of one of the defendants, survived, not only against the other defendants, but also against the executor of him who died, and might be proceeded on against them all jointly. So if one of these covenantors had died, the same principle would authorize a joint suit against the survivors, and the executor or heir of the dead one. It is for the benefit of the creditors and the surviving debtors that it should be so, and, indeed, for the representatives of the deceased party also; since it is well to charge, at once and together, all those who may be ultimately charged, and without the necessity of incurring the expense of separate actions. Now, if the case thus fall within (420) that branch of the act which authorizes a joint action, where one of the obligors or covenantors is dead, it would seem it must fall also within the other, which allows an action against any one or more of the persons making "a joint agreement," omitting some of the parties. There is nothing in the nature of the thing, or in the objects of the acts, which should confine their operation to contracts for the payment of money merely. Agreements, generally, are mentioned; and there have been numberless actions, like this, brought on bonds with collateral conditions, or on joint covenants for the performance of specific things other than the payment of money. If any covenant be within the acts, all must be, one being as much of an agreement as another. If persons owning land jointly, or in common, do not mean to be liable for each other, they need not be, as they may make several conveyances, or in the same deed may covenant severally, each one for himself and for his share. The judgment must be reversed, the demurrer sustained, and judgment of respondeat ouster.
PER CURIAM. Judgment accordingly.
Cited: White v. Griffin, 47 N.C. 4.
(421)