BENDER v. FROMBERGER, 4 U.S. 436 (1806)

U.S. Supreme Court

BENDER v. FROMBERGER, 4 U.S. 436 (1806)  4 U.S. 436 (Dall.)

Bender v. Fromberger. Supreme Court of Pennsylvania. December Term, 1806

COVENANT. On the trial of the cause in March T. 1806, it appeared, that the defendant and his wife had sold and conveyed a tract of land to the plaintiff for 2390 dollars, by deed dated the 8th of September 1797; and had therein covenanted, 'that the defendant was lawfully seised of a good, sure and indefeasible estate of inheritance, in fee simple, in the said land, and had good right, full power, and authority, in his own right, to grant and convey the same to the plaintiff in fee.' The deed, also, contained a special warranty against the grantor and his heirs, and all persons claiming under them. Bender took possession of the premises and made considerable improvements, as well in fences and buildings, as in the cultivation of the soil; so that the property was valued, in May 1802, at 5000 dollars. An ejectment was brought, however, at the suit of Benjamin Hilton against Bender, in the Circuit Court of the United States; and, after a trial, verdict, and judgment for the plaintiff, a Hab. Fac. Possess. issued returnable to May T. 1802, upon which the possession was delivered on the 4th of February 1802. Bender then instituted the present suit, in which the declaration stated the covenant, that the defendant was seised of an indefeasible estate in fee simple, and that he had a good right to convey the same to the plaintiff; and assigned as a breach, that the defendant was not so seised, nor had he good right to convey the said land in fee to the plaintiff. Profert of the deed was made, but oyer was not demanded. The defendant pleaded Non infregit conventionem, on which issue was joined; and, also, performance with leave, &c. to which the plaintiff replied, generally, non-performance, and issue was thereupon joined. At the trial of the cause, in March term 1806, upon the recommendation of the Court, and with the consent of the parties, a verdict was taken in these terms: 'The jury find for the plaintiff 6232 dollars 50 cents: but if the Court shall be of opinion, that the plaintiff is not entitled to recover the value of the improvements made by him, after he purchased of the defendants, then they find damages 2979 dollars 14 cents, and 6 cents costs.' [Footnote 1]

Page 4 U.S. 436, 437

Before the argument, on the point, which the jury had thus submitted to the court, a motion was made in arrest of judgment, on the following grounds: 1st. That the declaration was vicious, inasmuch as it did not assign a legal breach of the covenant. 2d. That there was not, in any part of the pleadings, sufficient matter, for the court to render judgment in favour of the plaintiff. 3d. That it is apparent on the record, that the plaintiff has no cause of action. In support of these objections, it was argued, for the defendant, 1st. That the declaration does not aver, that the recovery in Hilton's lessee v. Binder, was upon a title paramount. Freem. 122. Hob. 12. 4 Co. 80. Cro. J. 674, 5.Hob. 34. Ca. temp. Hardw. 271. Cro. E. 917. Cro. J. 315. Cro. E. 823. Cro. Car. 5. Vaugh. 118. 2 Vent. 61. Cro. J. 444. 1 Mod. 292. 1 Lev. 301. 3 Mod. 135. 3 T. Rep. 584. 2d. That although the modern authorities admit, that it is sufficient, if the breach is assigned in the same general words, as the covenant; yet, in that case, it is necessary, that the replication should be more specific and particular. Cro. E. 544. Cro. J. 171. 4. T. Rep. 620. For non infregit conventionem is no plea, unless the breach is assigned affirmatively. Co. Litt. 303. 6. And it is a rule in pleading, th t you cannot go to issue on a general averment of performance. 3 Woodes. 93. Cowp. 578. 3d. That the declaration contains a profert of the deed; and, according to the practice of Pennsylvania, oyer must be presumed,

Page 4 U.S. 436, 438

which spreads the deed upon the record. Then, as it will appear, that the deed contains a special warranty, in the conclusion, the antecedent express covenant, that the grantor was seised of an indefeasible estate, & c. is thereby restrained and controuled. 3 Lev. 46. 1 Lev. 57. Rep. temp. Finch 96. 2 Bos. and Pull. 13. 3 Bos. and Pull. 565. 573. Thus, independent of general authorities, the words 'grant, bargain and sell,' which by themselves, are declared in an act of assembly, to import a general warranty, have always been considered as qualified and limited, if the deed contains a subsequent special warranty. 1 St. Laws 109. And on this construction of the deed, the plaintiff had no cause of action, when the suit was instituted. For the plaintiff, it was answered, 1st. That the declaration is correct, in technical form; for, in covenant, the breach may be assigned in as general words, as the covenant. 6 Vin. 421. pl. 2. 9 Co. 60. Cro. J. 304. 6 Vin. 424. pl. 3. 2 Show. 460. Sir T. Raym. 14. Cro. J. 369. 2 Bac. Abr. 84. 6 Vin. Abr. 422. pl. 1. Hob. 12. 2 Bos. and Pull. 14. (in note) 3 Woodes. 92. 5 Bac. 58. 60. 2d. That the cases cited for the defendant arose upon a covenant for quiet enjoyment, which cannot be broken without an actual eviction; but a covenant of title, may be broken without eviction, upon proof that the grantor had not an estate in fee; and, in an action for the breach, it is neither necessary to allege, nor to prove, an eviction. 3d. That the declaration assigns the breach on the first covenant only; and as oyer was never prayed, the second covenant is not even before the court. 2 Saund. 228. 1 Saund. 233. 1 Lev. 88. 1 Saund. 9. 307. 1 T. Rep. 149. 1 Stra. 227. Besides, the covenants, though they cannot be regarded as one (which was the case in 2 Bos. and Pull. 13.) are neither inconsistent, nor contradictory: the one being a covenant, that the grantor has a good estate; the other being a covenant of warranty; the latter is introduced into deeds by the scrivener, of course; but the former is only inserted upon the agreement and instruction of parties. A special covenant in fact, may restrain an implied covenant; but here are two express covenants, which may operate together; and each should be construed most strongly against the grantor. 2 Keb. 10. 15. 1 Sid. 289. 1 Lev. 183. 1 Sid. 215. The chief justice, after stating the pleadings, and the reasons assigned in arrest of judgment, delivered the opinion of the court, in the following terms:

TILGHMAN, Chief Justice. As to the first point, although it was opened by the defendant's counsel, yet, I think, in the course of the argument, it was nearly abandoned. It certainly has not been supported; for many cases have been produced, proving that it is sufficient to assign the breach in terms as general as those in which the covenant is expressed;2 and more than one

Page 4 U.S. 436, 439

of those cases, were upon the very same kind of covenants as the one now in question. The second point, amounts, in substance, to this, that the issues were altogether immaterial. It is an undoubted principle, that verdicts, after a trial of the merits of a cause, are, if possible, to be supported. For this reason, many things are good after verdict, which would be bad, on demurrer. Many things, not alleged in the pleadings, may be presumed to have been proved on the trial; because, unless they had been proved, the jury could not, properly, have given a verdict in the manner they did. One of the authorities3 cited by the plaintiff's counsel, went to the point; that, upon a breach assigned, that the defendant was not seised of a good estate n fee, &c. to which the defendant pleaded non infregit conventionem, and thereupon issue was joined, the issue, though informal, was sufficient for the Court to enter judgment on. Now, this is the very same issue as one of those joined in this cause. But let us consider the other issue, joined on the plea of performance, with leave, &c. This kind of plea is peculiar to Pennsylvania, and is unknown in England. It was invented to save the trouble of special pleading, and has been sanctioned by too long a practice, to be now shaken. In fact, it gives the defendant every advantage which he could derive from special pleading, and saves all the labour and danger: for, upon notice to the plaintiff, without form, he may give any thing in evidence which he might have pleaded. A great number of issues, in actions of covenant, have been joined precisely as this is; and if this judgment may be arrested, on account of the immateriality of the issue, all judgments founded on similar issues, are liable to be reversed, on writs of error. In considering the present motion, the Court know nothing but what appears on the record. Now, how can they say, that an issue is immaterial, in which the defendant might, for aught that appears, have given evidence of all those special matters, on which the merits of his defence rested. The defendant has contended, that it ought to have appeared, either in the plea, or the replication, that the plaintiff had been evicted. But, it is to be observed, that if the cases cited by him, are examined, they will be found to be most, if not all, of them, on covenants for quiet enjoyment, where the covenant was not broken without an eviction by better title. But a covenant, that one is seised of an indefeasible estate in fee, may be broken without an eviction; and, in such case, the jury will give such damages as they think proper. Upon the whole, I am clearly of opinion, that this issue is not immaterial. I will now consider the defendant's third point, which is, that it appears, by the record, that the plaintiff has no cause of action.

Page 4 U.S. 436, 440

The defendant's argument is founded on this-that the plaintiff, by making a profert of the deed, has brought its whole contents before the Court; that part of its contents, is a clause of special warranty, by which they say, the general covenant on which the plaintiff has declared, is qualified and restrained; and, of course, that the plaintiff has no cause of action, because the defendant only warranted against himself, and those who should claim under him. To this it has been answered, by the plaintiff's counsel, and, I think, truly, that, oyer not having been prayed, no part of the deed appears to the Court, but that which the plaintiff has declared on; and, consequently, the Court can take no notice of the special warranty. But I think it best to deliver my opinion on the effect of the special warranty, that the defendant may not be disquieted, by supposing that he had a good defence, which he has lost the advantage of by a slip of his counsel. I subscribe to the principle laid down by Lord Eldon, in the case of Browning v. Wright,4 cited on the part of the defendant, that where it manifestly appears, from a consideration of every part of the deed, that no more than a special warranty was intended, it shall be so construed, although the deed, in one part, contains words of covenant of more general import. To this rule, I add the two following ones: That, in construing a deed, no part shall be rejected, unless it produces contradiction or absurdity; and that, in doubtful cases, a deed is to be construed in favour of the grantee. The deed in question contains a conveyance by the words grant, bargain, and sell; a covenant that the grantor is seised of a good estate in fee simple, subject to no incumbrances, but a certain ground rent; and a covenant of special warranty.

It has been the prevailing opinion, tha by virtue of an act of assembly, passed in the year 1715,5 the words 'grant, bargain and sell,' have the force of a general warranty, unless restrained by subsequent expressions. To qualify the general warranty, it has been the custom of scriveners to insert a clause of special warranty. And, I believe, it is inserted pretty much as a matter of course, unless in cases where the parties agree on a general warranty. I believe, too, that, in Pennsylvania, the greater part of conveyances have, as Mr. Ingersoll has stated, been made with special warranty. Still it remains to be considered, what was the intent of the grantor in the present instance? The defendant contends that his intent was, to give no more than a special warranty, because the clause of special warranty is inconsistent with, and contradictory to, a general warranty. Now, in this, I cannot agree with him. It is certain that the special warranty, and more, is included in the general one. It is an inaccurate mode of conveyancing; but there is no absurdity or contradiction, in making one covenant against yourself and your heirs, and another against all

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mankind. The special warranty was unnecessary, and is to be attributed to the ignorance of the scrivener, who, probably, thought it was a matter of course, without intending to affect the more general preceding covenant; or, perhaps, he might think it necessary to guard against the effect of the words 'grant, bargain, and 'sell,' used in the first part of the deed; because the estate was subject to a ground rent, as appears from the general covenant, in which it is said that the estate is free from all incumbrances, except the said ground rent. It has been urged, that it is all one covenant, because the special warranty is connected with the preceding general covenant, by the words and that. It is very common, to connect a covenant of warranty, and a covenant for further assurance, by these expressions. But what I rely on, is the intent of the parties, manifested in the deed considered altogether. I do not conceive it is possible for a man of common sense to declare, that he engages that he had a perfect estate in fee simple, and had a good right to convey such perfect estate, without intending to warrant to a greater extent, than against himself and his heirs. There are no technical expressions, but such as every man understands, which is not the case with a special warranty. To a common man it is not very intelligible, that there should ever be occasion to warrant and defend against himself, and all persons claiming under him; for, it is very natural to suppose, that when a man has used words sufficient to convey his estate to a third person, he has necessarily done enough to bar himself and all persons claiming under him, without calling in the aid of a special warranty. In short, the insertion of the clause of special warranty, is generally the act of scriveners; but I presume, that no scrivener could be so stupid as to insert a covenant, that 'the grantor was seised of an indefeasible estate in fee,' unless he had been told by the parties, that a general warranty was intended. I am, therefore, of opinion, that the special warranty in this deed, has not the effect of controling the precedent general covenant, and that judgment should be entered for the plaintiff.

It is proper to add, that after the conclusion of the argument last night, I consulted with my brother Yeates, who concurs with my opinion, both with respect to the pleadings and the construction of the deed.

Footnotes Footnote 1 At the trial of the cause, a question of some importance occurred. The defendant claimed under a sale by the commonw alth of the premises, as the forfeited estate of Joseph Griswold, who, it was alleged, had been attainted, by proclamation, during the revolutionary war. His counsel, with a view to maintain the validity of his title, offered to read the proclamation in evidence. The opposite counsel proved, that the defendant had due notice of Hilton's ejectment; took part in preparing evidence for

the trial; and had, in fact, acceded to a settlement, in consequence of the eviction: And, they contended, therefore, that the verdict in that ejectment was conclusive to establish a defect of title. After argument, ( in which the plaintiff's counsel cited, Cro. I. 304. Sid. 289. 2 Show. 460. 9 Co. 60. Bradshaw's case, and the defendant's counsel cited, 1 Stra. 400. 2 Rol. Rep. 6. 28. 287. 8 T. Rep. 278.) the chief justice delivered the unanimous opinion of the court:

TILGHMAN, Chief Justice. Some difficulty has occurred in deciding this point; but the court have formed an unanimous opinion, that the evidence offered by the defendant, to prove that he had a good title to the land in question, is inadmissible. The title has been already decided in an ejectment, the only mode in which title to land can be directly decided; and of that ejectment,

the defendant had full notice. If the defendant should now be permitted to give his title in evidence; and the jury should find a verdict in favour of it, the plaintiff's remedy, by action of covenant on the deed, would be gone; and if his title should ultimately fail, on the trial of another ejectment, to be brought by him, he would lose both land and money. But, on the other hand, if the plaintiff recovers in the present suit, it is in our power, by imposing terms upon him, to do justice to the defendant. Indeed, the plaintiff has made our interference unnecessary, by a voluntary offer to execute a conveyance to the defendant of all his right, upon receiving the damages awarded by the jury. He was not obliged (as the defendant's counsel allege) to tender this conveyance, before he brought the suit: it is sufficient if the conveyance is executed, when the defendant pays the damages.

We do not decide, whether the defendant might have gone into evidence of the title, if he had given notice to the plaintiff, immediately after Hilton's recovery,

that he was dissatisfied with the verdict, and meant, at his own expence, to prosecute an ejectment against Hilton, to try the question a second time. But, so far from pursuing this course, the defendant's conduct has shewn an acquiescence in the verdict and judgment, which Hilton obtained.

Footnote 2 5 Bac.

Footnote 3 5 Bac. Pleas, title, Immaterial and Informal Issues, p. 59, 60

Footnote 4 2 Bos. & Pull. 14.

Footnote 5 1 St. Laws, 109. s. 6.