1. In a suit to enforce a lien for the purchase money, where
there has been no fraud and no eviction, actual or constructive,
the vendee or the party in possession of the lands under him cannot
controvert the title of the vendor.
2. A party claiming the lands by an adverse title cannot be
permitted to bring it forward and have it settled in that suit.
3. The vendee and those claiming under him must rely on the
covenants of title in the deed of the vendor; if there be none,
there is, in the absence of fraud, no redress.
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is a bill to enforce a lien upon real estate situate in
Tunica County in the State of Mississippi. Bowman owned the
premises in fee simple, and sold the undivided half to
Page 98 U. S. 57
Bostick, and gave him a written contract, valid in equity, but
not sufficient to pass the legal title.
Bostick died in 1868, possessed of property in Mississippi and
Tennessee and leaving a last will and testament.
By one of the clauses, he appointed Gwinn his executor in
Mississippi and the appellee Elliott his executor in Tennessee.
By another clause, he authorized the Mississippi executor to
lease or cultivate the premises in question with Bowman, and
finally, under the circumstances named, "to join the said Bowman in
making sale and title to the purchasers."
By another clause, after the payment of all legacies, debts, and
expenses of administration, he gave to three persons, whom he
named, and their successors, as trustees, the entire residue of his
estate, "to be invested by them in a suitable site and buildings
for a female academy" in Tennessee, and to be otherwise devoted to
that institution.
Gwinn died in the lifetime of the testator.
On the 11th of January, 1869, the Probate Court of Tunica County
granted "letters testamentary of the said last will and testament"
to Elliott.
On the 25th of January, 1869, Elliott, describing himself as
"executor of the last will and testament of J. Bostick, acting
under the powers conferred by said will," and Bowman, united in a
conveyance with full covenants to the four brothers, Jaquess, for
the consideration of $4,000, paid in cash, and the further sum of
$24,000, for which four notes were given by the vendees, each for
the sum of $6,000, and payable respectively on the first day of
January in the years 1870, 1871, 1872, and 1873, with interest at
the rate of six percent per annum.
In reference to these notes, the deed contains the following
provision:
"And to secure the payment of each and all of which said notes
and interest, an express lien is hereby retained by the parties of
the first part upon the real estate and premises"
in question.
The note maturing on the 1st of January, 1870, was paid by the
Jaquess Brothers.
On the 26th of January, 1870, they sold and conveyed the
premises to the appellant, Peters, for the consideration
expressed
Page 98 U. S. 58
in the deed of the sum of $11,920 cash in hand
"and the assumption by the said Peters of the payment of three
promissory notes for $6,000, made by the first parties (Jaquess
Brothers), and payable to Elliott and Bowman, for the same land
herein conveyed."
This deed contains a covenant of the right to convey, of seisin,
and of general warranty.
The covenant of good right to convey is synonymous with the
covenant of seisin. The actual seisin of the grantor will support
both, irrespective of his having an indefeasible title.
These covenants, if broken at all, are broken when they are
made. They are personal, and do not run with the land.
Marston
v. Hobbs, 2 Mass. 432;
Greenby & Kellogg v.
Wilcocks, 1 Johns. (N.Y.) 2;
Hamilton v. Wilson, 4
id. 72.
Peters put his co-defendants, General Chalmers and wife, in
possession of the premises under an arrangement whereby, when they
should pay the balance of the purchase money, he would convey to
Mrs. Chalmers. Their possession has since continued, and has been
undisturbed.
On the 8th of November, 1869, the same probate court granted
letters of administration "upon the estate of J. Bostick, deceased,
with the will of said Bostick annexed," to Elliott, upon his giving
a sufficient bond and taking the oath prescribed by law, both of
which were then done.
The original bill was filed on the 28th of February, 1873, to
enforce the lien reserved in the deed of Elliott and Bowman to
Jaquess Brothers, to secure the notes given for the purchase money,
the three last of which are wholly unpaid.
On the 31st of July, 1874, Elliott, to obviate objections made
to the prior deed, executed a second deed to the Jaquess Brothers
for the same premises. In this deed he describes himself as
"administrator with the will annexed of said Bostick" &c.
The deposition of Elliott shows that Bostick never had any title
to the premises but what he derived from his contract with Bowman;
that Bowman, after Bostick's death, insisted upon selling, and
hence the sale to the Jaquess Brothers.
The court below decreed in favor of the complainants. Peters
brought the case here for review.
There is no controversy about the leading facts of this
case.
Page 98 U. S. 59
The questions presented are all questions of law. Bowman had the
legal title to the entire premises, and that title he conveyed to
Jaquess Brothers, and they conveyed it to Peters. The deed of
Elliott and Bowman contained all the usual covenants of title. The
covenant of warranty ran with the land, and passed by assignment to
Peters. The deed of the Jaquess Brothers produced that result. In
the event of a failure of title, Peters can sue upon this covenant
in either deed.
King v. Kerr's Adm'r, 5 Ohio 154. When
broken, it becomes a chose in action, but a subsequent grantee may
sue the warrantor in the name of the holder. There can be but one
satisfaction.
Id. A sheriff's or a quitclaim deed will
carry the covenant before its breach to the grantee.
White v.
Whitney, 3 Metc. (Mass.) 81;
Hunt v. Amidon, 4 Hill
(N.Y.) 345.
Where at the time of the conveyance with warranty there is
adverse possession under a paramount title, such possession is
regarded as eviction, and involves a breach of this covenant. Where
the paramount title is in the warrantor and the adverse possession
is tortious, there is no eviction, actual or constructive, and no
action will lie.
Noonan v. Lee,
2 Black 499;
Duval v. Craig,
2 Wheat. 45. Here there is no adverse possession, and no eviction,
actual or constructive, nor does it appear that suit has been
threatened, or that an adverse claim has been set up by any one.
The possession and enjoyment of the property by General Chalmers
and his wife have been the same as if their title were
indisputable. It is insisted that the first deed of Elliott was
fatally defective because the letters from the probate court under
which he acted in making it were issued to him as executor, and
that both deeds were void because under the will and the
circumstances there was no authority to sell, and lastly because
the residuum of the estate of the testator, including proceeds of
the premises in question, was disposed of in a way forbidden by a
law of the State of Mississippi.
We prefer to rest our judgment upon a ground independent of all
these points, and which renders it unnecessary to examine them.
It is the settled law of this Court that upon a bill of
foreclosure, or, as in this case, a bill to enforce a lien for the
purchase money,
Page 98 U. S. 60
and where there has been no fraud and no eviction, actual or
constructive, the vendee or a party in possession under him cannot
controvert the title of the vendor, and that no one claiming an
adverse title can be permitted to bring it forward and have it
settled in that suit. Such a bill would be multifarious, and there
would be a misjoinder of parties.
Noonan v. Lee, supra; Dial v.
Reynolds, 96 U. S. 340. In
such cases, the vendee and those claiming under him must rely upon
the covenants of title in the deed of the vendor. They measure the
rights and the remedy of the vendee, and if there are no such
covenants, in the absence of fraud, he can have no redress. This
doctrine was distinctly laid down in
Patton
v. Taylor, 7 How. 159, and was reexamined and
affirmed in
Noonan v. Lee. See also Abbott v.
Allen, 2 Johns. (N.Y.) Ch. 519;
Corning v. Smith, 6
N.Y. 82; Beebe v. Swartwout, 8 Ill. 162. That the vendor is
insolvent or absent from the state, or that an adverse suit is
pending which involves the title, does not withdraw the case from
the operation of this principle.
Hill v. Butler, 6 Ohio
St. 207;
Platt v. Gilchrist, 3 Sandf. (N.Y.) 118;
Latham v. Morgan & Fitz, 1 Smed. & M. (Miss.) Ch.
611.
The rule is founded in reason and justice. A different result
would subvert the contract of the parties and substitute for it one
which they did not make. In such cases, the vendor, by his
covenants, if there are such, agrees upon them, and not otherwise,
to be responsible for defects of title. If there are no covenants,
he assumes no responsibility, and the other party takes the risk.
The vendee agrees to pay according to his contract, and secures
payment by giving a lien upon the property. Here it is neither
expressed nor implied that he may refuse to pay and remain in
possession of the premises, nor that the vendor shall be liable
otherwise than according to his contract.
Where an adverse title is claimed, it cannot be litigated with
binding effect unless the claimant is before the court. We have
shown that he cannot be made a party. One suit cannot thus be
injected into another. Without his presence, the judgment or decree
as to him would be a nullity. The law never does or permits a vain
thing.
Page 98 U. S. 61
A title which cannot be made good otherwise may be made so by
the lapse of time or the statute of limitations. Is the vendor to
wait until this shall occur? and, in the mean time, can the vendee,
or those claiming under him, remain in possession and enjoy all the
fruits of the contract, and pay neither principal nor interest to
the vendor?
Chancellor Kent well says,
"It would lead to the greatest inconvenience, and perhaps abuse,
if a purchaser in the actual possession of land, and when no third
person asserts or takes any measures to assert a hostile claim, can
be permitted, on a suggestion of a defect or failure of title, and
on the principle of
quia timet, to stop the payment of the
purchase money, and of all proceedings at law to recover it."
Abbott v. Allen, supra.
Decree affirmed.