Duvall v. Craig
15 U.S. 45 (1817)

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U.S. Supreme Court

Duvall v. Craig, 15 U.S. 2 Wheat. 45 45 (1817)

Duvall v. Craig

15 U.S. (2 Wheat.) 45

Syllabus

Variances between the writ and declaration are matters pleadable in abatement only, and cannot be taken advantage of upon general demurrer to the declaration.

A trustee is in general suable only in equity, but if he chooses to bind himself by a personal covenant, he is liable at law for a breach thereof, although he describe himself as covenanting as trustee.

Where the parties to a deed covenanted severally against their own acts and encumbrances, and also to warrant and defend against their own acts, and those of all other persons, with an indemnity in lands of an equivalent value in case of eviction; it was held that these covenants were independent, and that it was unnecessary to allege in the declaration any eviction, or any demand or refusal to indemnify with other lands, but that it was sufficient to allege a prior encumbrance by the acts of the grantors, &c., and that the action might be maintained on the first covenant in order to recover pecuniary damages.

Where the grantors covenant generally against encumbrances made by them, it may be construed as extending to several, as well as joint encumbrances. No profert of a deed is necessary where it is stated only as inducement, and where the plaintiff is neither a party nor privy to it.

An averment of an eviction under an elder title is not always necessary to sustain an action on a covenant against encumbrances, if the grantee be unable to obtain possession in consequence of an existing possession or seizin by a person claiming and holding under an elder title, it is equivalent to an eviction, and a breach of the covenant.

Page 15 U. S. 46

The capias ad respondendum issued in this case was as follows:

"The United States of America to the Marshal of the Kentucky District, Greeting. You are hereby commanded to take John Craig, Robert Johnson and Elijah Craig, if they be found within your bailiwick, and them safely keep so that you have their bodies before the judge of our district court at the capitol in Frankfort on the first Monday in March next to answer William Duvall, a citizen of the State of Virginia, of an action of covenant; damages $50,000, and have then and there this writ. In testimony whereof, Harry Innes, Esq. judge of our said court, hath caused the

Page 15 U. S. 47

seal thereof to be hereunto affixed this 22 January, 1804, and of our independence the 28th. Thomas Turnstall, C.D.C."

Whereupon the plaintiff declared against John Craig, Robert Johnson, and Elijah Craig, in covenant,

"for that whereas, on 28 February, 1795, &c., the said John, and the said Robert and Elijah, as trustees to the said John, by their certain indenture of bargain and sale, &c., did grant, bargain, sell, alien, and confirm unto the said plaintiff, by the name of William Duvall, of the City of Richmond and State of Virginia, his heirs and assigns forever, a certain tract of land lying and being in the State of Kentucky, &c., together with the improvements, watercourses, profits, and appurtenances whatsoever belonging or in any wise appertaining, and the reversion and remainder, and remainders and profits, thereof; and all the estate, right, title, property, and demand of them, the said John Craig, and Robert Johnson and Elijah Craig, trustees for the said John Craig, of, in, and to the same, to have and to hold the lands thereby conveyed with all and singular the premises, and every part and parcel thereof to the said William Duvall, his heirs and assigns forever, to the only proper use and behoof of him, the said William, his heirs and assigns forever, and the said John Craig, and Robert Johnson and Elijah Craig, trustees to the said John Craig, for themselves, their heirs, executors, and administrators, did covenant, promise, and agree, to and with the said William Duvall, his heirs and assigns, that the premises before mentioned,

Page 15 U. S. 48

then were, and forever after should be, free of and from all former and other gifts, bargains, sales, dower, right and title of dower, judgments, executions, titles, troubles, charges, and encumbrances whatsoever done or suffered to be done by them, the said John Craig, and Sarah his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig, as by the said indenture will more at large appear. And the said William in fact saith that the premises before mentioned were not, then and there, free of and from all former gifts, grants, bargains, sales, titles, troubles, charges, and encumbrances whatsoever done and suffered to be done by the said John Craig, and Sarah his wife, and Robert Johnson and Elijah Craig, trustees to the said John Craig. But on the contrary, the said John Craig and Robert Johnson theretofore, to-wit, on 11 May, 1785, assigned the place and certificate of survey of said land to a certain John Hawkins Craig, by virtue of which said assignment, Patrick Henry, Governor of the Commonwealth of Virginia, granted the said land to said John Hawkins Craig, and his heirs forever, by letters patent dated 16 September, 1785, and now here shown to the court, the date whereof is the day and year aforesaid, which said patent to the said John Hawkins Craig, on the day and year first aforesaid at the district aforesaid was in full force and virtue, contrary to the covenant aforesaid, by reason of which said assignment, patent, and encumbrance, the said William hath been prevented from having and enjoying all or any part of the premises above mentioned.

Page 15 U. S. 49

And thereupon the said William further saith that the defendants aforesaid, although often requested, have not kept and performed their covenant aforesaid, &c. To which declaration there was a general demurrer, and joinder in demurrer, and a judgment thereupon in the circuit court for the defendants."

The indenture referred to in the plaintiff's declaration is in the following words:

"This indenture, made this 28 February, 1795, between John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig, all of the State of Kentucky, of the one part, and William Duvall of the City of Richmond, and State of Virginia, of the other part, witnesseth that the said John Craig, for and in consideration of the sum of two thousand pounds, current money of Kentucky, to him, the said John Craig, in hand paid, the receipt whereof they do hereby acknowledge and forever acquit and discharge the said William Duvall, his heirs, executors, and administrators, have granted, bargained and sold, aliened and confirmed, and by these presents do grant, bargain and sell, alien and confirm, unto the said William Duvall, his heirs and assigns forever, a certain tract of land lying and being in the State of Kentucky, and now County of Scott, formerly Fayette, on the waters of the Ohio River below the Big Bone Lick Creek, it being the same lands that the said John Craig covenanted by a writing obligatory, sealed with his seal and dated the second day of December, 1788, to convey to Samuel McCraw, of the City of Richmond,

Page 15 U. S. 50

and which said writing the said Samuel McCraw, on the back thereof, endorsed and transferred the same on 27 February, 1789, to William Reynolds, and which is bounded as follows, beginning at a poplar and small ash corner, to William Bledsoe, about thirty miles nearly a south course from the mouth of Licking; thence S. 15, E. 520 poles with the said Bledsoe's line, crossing four branches to an ash and beech; thence S. 75, W. 150 poles, to a hickory and beech; thence S. 15, E. 400 poles, crossing a branch to a sugar tree and beech, near a branch; thence S. 75, W. 87 poles, to three beeches, corner to Robert Sanders; thence with his line S. 15 E. 600 poles, crossing two branches to a poplar and sugar tree; thence S. 60 poles to a sugar tree and beech; thence west 2,174 poles, crossing five branches to a large black walnut; thence north 1,580 poles, crossing a large creek and four branches to a sugar tree and ash; thence E. 2,006 poles, crossing five branches to the beginning; containing 20,440 acres, together with the improvements, watercourses, profits, and appurtenances whatsoever to the same belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, and profits thereof, and all the estate, right, title, property, and demand, of them, the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig of, in, and to the same, to have and to hold the land hereby conveyed, with all and singular the premises and every part and parcel thereof, to the said William Duvall, his heirs and

Page 15 U. S. 51

assigns forever, to the only proper use and behoof of him, the said William Duvall, his heirs and assigns forever. "

brk:

And the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees to the said John Craig, for themselves, their heirs, executors, and administrators, do covenant, promise, and agree to and with the said William Duvall, his heirs and assigns by these presents that the premises before mentioned now are and forever after shall be free of and from all former and other gifts, grants, bargains, sales, dower, right, and titles of dower, judgments, executions, title, troubles, charges, and encumbrances whatsoever done or suffered to be done by the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig. And the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig, and their heirs, all and singular the premises hereby bargained and sold, with the appurtenances, unto the said William Duvall, his heirs and assigns, against him the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig, and their heirs, and all and every persons whatsoever, do and will warrant and forever defend with this warranty, and no other, to-wit, that if the said land or any part thereof shall at any time be taken by a prior legal claim or claims, that then and in such case they, the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig, and their heirs, shall make good to the said William Duvall

Page 15 U. S. 52

and his heirs, such part or parts so lost, by supplying to his the said William Duvall's use, other lands in fee of equal quantity and quality, to be adjudged of by two or more honest, judicious, impartial men, mutually chosen by the parties for ascertaining the same. In witness whereof the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig, have hereunto set their hands and seals, the date first in this indenture written.

"JOHN CRAIG"

"SARAH CRAIG"

"ROBERT JOHNSON"

"Trustee for John Craig"

"ELIJAH CRAIG"

"Trustee for John Craig"

"Signed, sealed, and delivered in presence of"

"Charles W. Byrd"

"T. S. Threshly"

"Thomas Corneal"

"Christopher Greenup"

"Robert Saunders"

"James Taylor"

"Jos. Wiggleworth"

"George Christy "

Page 15 U. S. 55

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