Opinion
(December Term, 1851.)
1. A covenant of warranty, annexed to an estate in land, determines with the estate to which it is annexed. But when one takes a conveyance in fee, with covenant of warranty from a husband and his wife, and the title of the wife does not pass in consequence of the want of her privy examination, yet the bargainee takes an estate in fee as to all the world except the wife and those claiming under her, not barred by the statute of limitations.
2. An estate is determined only when it expires by its own limitation; and when the limitation is in fee, the covenants of warranty run with it, and may be sued by the bargainee and his assignees when they are evicted by a title paramount.
3. When a man purchases at a sheriff's sale under execution the estate which another professes to have in fee to certain lands, to which covenants in warranty are annexed, he acquires, as incident to the estate, the right to those covenants.
4. Where covenants of warranty which run with the land are contained in a conveyance, purporting to be in fee, the tenant in fee in possession cannot, by any assignment, sever the covenants so as to make them independent of the estate. They are incidents and cannot be disannexed from their principal.
APPEAL from Ellis, J., at Spring Term, 1851, of FRANKLIN.
The case is stated in the opinion delivered in this Court.
Saunders and Moore for plaintiff.
W. H. Haywood for defendant.
This is an action of covenant, on a warranty in the deed of one Harrison, the testator of the defendant. One Jones and his wife, being seized in fee, in right of the wife, and having had issue, executed a deed of bargain and sale, purporting to convey the land to Harrison in fee. The privy examination of the wife was not in due form. Afterwards Harrison, of whom the defendant is the executor, executed a deed of bargain and sale, purporting to convey the land to one Howerton in fee, with a covenant of general warranty, which is the covenant now sued on; this deed was dated in 1828, and under it Howerton entered and continued in possession until 1842. In April, 1842, Howerton executed a deed of bargain and sale, purporting to convey the land to one Green in fee, with a clause assigning and conveying to the said Green and his heirs "all the covenants in the deed of Harrison warranting the title of said land, and all other covenants in said deed contained, with full power to sue for any breach thereof in my name, but at his own costs and for his own use."
In September, 1842, the sheriff sold the land under execution against Howerton, tested March, 1842, and the plaintiff was the purchaser, and took from the sheriff a deed conveying to him and his heirs "all the estates, interest, and claim" of the said Howerton. Under this deed the plaintiff entered and continued in possession until after the death of Jones, when he was evicted by the heirs at law of Mrs. Jones, on account of the defect in the title, by reason of the informality in the privy examination. Thereupon he brought this action. The case states "that at the time of the sheriff's sale the plaintiff had notice of the deed to Green, and it had then become notorious, and the plaintiff had notice that Howerton's estate was only an estate for the life of Jones by reason of the defect in the title."
His Honor being of opinion that the plaintiff could not support the action, he submitted to a nonsuit and appealed. In this there is error. Mr. Haywood laid down the position that a warranty, being a covenant annexed to an estate, could not continue longer than the (195) estate, and, consequently, that when the estate of the plaintiff was put an end to by the heirs of Mrs. Jones, at the death of Jones, the warranty was gone. We admit the position that the warranty is gone whenever the estate to which it is annexed determines; for it is a mere incident of the estate, and the incident cannot continue longer than the principal; as if there be an estate to A. for life, with warranty to him and his heirs and assigns, at the death of A. his estate determines, and the warranty is at an end. This case is put by Lord Coke, and the principle is contained in all the books. The error of Mr. Haywood is in reference to the meaning and application of the principle. When does an estate determine? When it is "spent" — expires by "the terms of its own limitation." If there is an eviction by title paramount, the estate is in one sense at an end, but has not determined so as to deprive the party of the benefit of his warranty, for if so, a warranty would never be of any force or effect until the eviction; the party has no use for it, and after that it is gone. This proposition certainly cannot be maintained.
It is not true that Howerton had only an estate for the life of Jones; he was seized of an estate in fee.
"The term of its limitation" was to him, "his heirs and assigns"; and, notwithstanding the fact that it had an "infirmity," and might be put an end to by reason of a defect in the title, still it was a fee simple. It was good until the death of Jones, and then it was only wrongful as to the heirs of Mrs. Jones. As to the rest of the world it was a good fee-simple estate. Suppose Howerton had died seized; could there be a question that his wife would have been entitled to dower? Her estate, like that of her husband's would be good against every (196) one except the heirs of Mrs. Jones. Or suppose Howerton had continued in possession for more than seven years after the death of Jones, can there be a question that he would not then have held a good estate in fee? This is not consistent with his having an estate only for the life of Jones. The truth is (possibly his Honor fell into error by not adverting to it), Jones purported to convey a fee to Harrison, and he purported to convey a fee to Howerton, and for the purpose of propping and fortifying this fee-simple estate he binds himself and his heirs in a covenant to Howerton, "his heirs and assigns," which is annexed to the estate, and "runs with it" for its protection against an eviction by title paramount.
Again, Mr. Haywood insists the plaintiff, as purchaser at the sheriff's sale, acquired only an estate for the life of Jones; consequently he did not get the warranty, for that was not the estate to which it was annexed. This is not an open question. The sheriff is empowered by statute to sell all the estates, interest and claim which the debtor himself could sell. Howerton, by his deed passing the estate, would have passed the warranty as an incident, and we think it clear the deed of the sheriff had the same effect. In Markland v. Crump, 18 N.C. 94, this point was directly presented, and is taken for granted. There is no question that the land of debtors, when sold under execution, and when it is known or suspected that there is a defect in the title, commands a fairer price, because it is understood that the purchaser acquires all covenants running with and protecting the estate. If the purchaser does not acquire the covenant, what becomes of it?
In the third place it was argued: The deed from Howerton to Green not only professed to pass the estate, but expressly passed the covenant of warranty, and although it was overreached in regard to the estate by the sheriff's sale and deed, yet it was insisted this could not (197) affect the assignment of the covenant, and Green thereby acquired the beneficial interest then, and has the right to sue on it in the name of Howerton. This cannot be so. The incident cannot be passed without the principal. If the principal does not pass, how can the incident pass? They are inseparable. Can the substance pass without the shadow, or the shadow without the substance? There is no authority or reason to support the proposition that a covenant, annexed to an estate and running with it, can be severed and assigned, so as to be passed by itself or retained by itself, and thereby give an independent cause of action. To show the absurdity of the idea, take this very case. The plaintiff, under the deed of the sheriff, goes into possession, and is evicted by title paramount; he has a cause of action, but the argument is he has no covenant to sue on; and Green has a covenant, but no cause of action, for he has not been evicted. So the covenanter escapes from his obligation, and cannot be sued by either. Again, is it reasonable or right that a debtor, finding his estate bound by executions of prior teste, should have the power to sever from the estate covenants annexed thereto for its protection, and assign them to a third person, whereby the estate thus "stripped naked" would sell for nothing, and his creditors be defrauded? Certainly there is no reason for such a doctrine, and no authority was cited to sustain it.
PER CURIAM. Venire de novo.
Cited: Register v. Rowell, 48 N.C. 315; Spruill v. Leary, post, 419; Southerland v. Stout, 68 N.C. 450; Wiggins v. Pender, 132 N.C. 638, 640.
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