CASES ADJUDGED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW-JERSEY.

FEBRUARY TERM, 1805.

LOT vs. THOMAS.

Covenant of seizin is not a real covenant, so as to pass with the land. A reconveyance by mortgage to covenantor is no release or bar to such covenant, nor has a purchase by covenantor at sheriff's sale, any such effect.

THIS was an action of covenant. The defendant, on the 1st of February, 1797, conveyed to the plaintiff by deed, in fee simple, a tract of land in Middlesex county; in the deed of conveyance he covenanted, that he was the sole owner of the the premises, and that he had in himself full right and absolute power and authority to grant, bargain and sell the same. The plaintiff in his declaration, assigned the breach in the words of the covenant. The defendant pleaded,

1st. That he was the sole owner, &c. and issue thereon. 2d. That the plaintiff, on the 2d February, 1797, the day after the execution of the first deed, conveyed by deed, the same premises back again to the defendant.

3d. That the premises were afterwards sold at sheriff's sale, at the suit of the defendant, and purchased by him. The plaintiff prayed oyer of the condition in the conveyance in the second plea mentioned; by which it appeared, that the conveyance so pleaded, was by way of mortgage, and replied, that the sum of money on which the judgment was obtained, and for which the land was sold, as in the third plea mentioned, was the [*e] same sum of money for which the mortgage was given, and not other or divers, to which, there was a demurrer and joinder.

Mr. Isaac H. Williamson, for the defendant:-Covenant of seizin, covenant of warranty, and covenant for further assurance, are all real covenants attached to the land, and pass with it: 3 Cro. 503, 3 Comy. 261, 262, 1 Cro. 373,

Shep. 194, 1 Swift 304, 3 Term Rep. 401. These covenants pass as well with a mortgage as with other deeds; a mortgagee may maintain an ejectment before the money secured by the mortgage becomes due; and after forfeiture he becomes the legal holder to all intents and purposes: 2 Blac. Com. 158. The estate passed by the mortgage was complete, and the covenant of seizin passed with the mortgage deed, from the plaintiff and being out of him he cannot sustain the action. The sale by the sheriff also passed all the right of the plaintiff to the land, as much so as if he had conveyed the land himself by deed, Pat. 371. Again, the plaintiff is estopped by the conveyance of the land by mortgage, and also by the sheriff's sale, from saying that he himself had no title, 2 Blac. Com. 395, Cowp. 601. Where a man purchases land, and it is afterwards sold by the sheriff, and he becomes thereby incapacitated from restoring the possession, and has not been evicted, he is estopped from an action on the covenant. The purchaser who brings an action of covenant of seizin, ought to be capacitated to restore the land to the person against whom he brings his action.

Mr. R. Stockton, for the plaintiff:-A mortgage in NewJersey is barely a pledge; and to all purposes, the mortga gor is the owner of the land, except as security for the mortgage money. The covenant of the defendant is a personal covenant; the breach of this covenant was in the time of the plaintiff, and was not conveyed with the land. The sale by the sheriff is the injury we complain of, because, from a defect in the title, it did not fetch the price it otherwise would. This is a personal covenant as it respects the defendant; the [*e] sale by the sheriff did not convey a chose in action, which the plaintiff was entitled to at the time of the sale; nor did it convey any right of action at all; an assignee cannot sue for any breach except in his own time, 2 Lev. 26, 3 Comy. 261-2. The person to whom the injury is done, or his representative, must bring the action. After the estate is determined, an action may be brought for breaches of covenant which happened before the determination of the estate, 2 Bacon 74.

Mr. Williamson, in reply:-A court of law will not take notice of the equitable title of the mortgagor, but consider the legal title in the mortgagee as an absolute title. The covenant of seizin continues and goes with the land; you cannot assign a breach until eviction. The action on the covenant of seizin cannot be maintained, unless the purchaser has either been evicted, or has offered to restore the possession.

A. Ogden, on the same side:-The defendant, or rather the covenantor, cannot be liable but to one person; two suits cannot be brought for the same cause of action; 3 Lev. 233. KIRKPATRICK, C. J.-Was of opinion, that the defendant ought to have judgment.

PENNINGTON, J.-It is contended by the counsel for the defendant-That a covenant of seizin is a real covenant, attendant on the land, and passes with it, and therefore, the right of action arising on the breach of covenant in this case, had passed out of the plaintiff with the land, before the action brought; and they liken the present case to a covenant of warranty, and a covenant of further assurance. At the time of the argument, I confess I was struck with the resemblance of the cases, and was a little surprised that no book case was produced to warrant the opinion; but on a more mature consideration of this case, I am fully satisfied that there is no likeness in the cases. A covenant to run with the land, must, from its nature have a continuance, and is made in contemplation of, and to guard against some event which [e] may fall out or happen in future, or to provide for some act to be performed thereafter that respects the land. A covenant of warranty is of this nature, to secure and defend the grantee against a future eviction; so also is a covenant for further assurance, an agreement to do a future act, to execute and deliver new conveyances in furtherance of the title. But a covenant of ownership or seizin is a present act, and if the covenantor hath not title or is not seized, the covenant is broken as soon as made; it is so laid down in Shep. Touchstone 170; the right of action immediately vests in the covenantee, and does not go with the land to his assignees, either grantee or feoffee. In the present case, the assignees of the covenantee are not mentioned in the covenant, as far as the contents of that instrument are disclosed by the record. However, if they were named I do not see that it could make any difference, for even if the covenant run with the land, they could not have an action for a breach before their time. It would, in fact, be assigning a chose in action, an act interdicted by the common law. If this covenant is, however, to be assimilated to a warranty, it is of some importance; as it is expressly laid down by Shepard 198, that those who are not named, such as heirs and assigns, shall not have advantage of a warranty.

It is said, however, by the counsel for the defendant, that an action for a breach of covenant of seizin cannot be maintained, unless the purchaser hath been evicted, or hath offered to restore the possession of the land. I cannot find a single case or even dictum to justify this extraordinary proposi

tion, and every day's practice is at variance with it; it hath been ruled over and over again, in cases arising on these actions of seizin, that an assignment of the breach in the words of the covenant is sufficient. If an eviction or an offer to restore was an essential requisite to the maintenance of the action, these essential points should be averred in the declaration; for no rule of pleading is more fully established, or on better reason, than that every declaration must contain a complete cause of action.

[*e] Again, it is said that the plaintiff is estopped both by the mortgage deed, and the sale and conveyance by the sheriff, to say that the defendant had no title. If this proposition is correct, great frauds and injustice would be sanctioned by our law. A conveys to B a tract of land, in the deed for which, he covenants, that he is lawful owner and hath full power to sell; B not being able at the time to pay all the purchase money, and believing A to have a good title, mortgages the same land to A to secure the balance, and afterwards pays off the mortgage; it turns out, however, that A had no title to the land, and B is evicted and turned out of possession, and brings the action on the covenant in his deed, but is estopped by the mortgage deed, to say that A was not owner, or had not full power to sell, and thus by a kind of legal legerdemain, B is tricked out of his money. If this doctrine is true, Lord Coke was not only justifiable in saying that estoppels were odious in law, but he might have gone further, and added, that they were also detestable.

Happily, however, our law is not chargeable with any such absurdity. It is laid down by Lord Čoke, that every estoppel, because it concludeth a man to allege the truth, must be certain to every intent, and not be taken by argument or inference, Coke Littleton 352, 6. If we apply this reasonable rule of the common law, so correctly expressed by his Lordship, to the case in question, the proposition of the defendant's counsel must go to the wall. The plaintiff in his mortgage deed, does not say that the defendant was sole owner of the premises, and had full right and absolute power and authority to grant, bargain and sell the same. The most that can be drawn from the mortgage deed is, that the plaintiff impliedly said, that he himself was owner, and had power and authority to bargain and sell, at the time of executing the mortgage deed, or rather that he shall not be permitted to say the contrary; from which, it is inferred by argument and deduction, that having purchased of the defendant the day before, he recognized and acknowledged his title; but even this argument [*e] and inference is not conclusive; the plaintiff might have purchased, or

otherwise acquired the legal title in the mean time; and although he may not be permitted to say, that he himself had no title at the time he executed the mortgage deed, yet he may, and ought to be permitted to say, that the defendant had no title when he executed his deed to the plaintiff. Even a recital in a deed doth not amount to an estoppel, because it is no direct affirmation, Coke Lit. 352, 6.

The conveyance by the sheriff is not only liable to the foregoing objections, as it respects the doctrine of estoppels, but to still greater, arising from the nature of the conveyance; although a man is in certain cases, estopped by his own act to allege the truth, yet he shall not be estopped by the act of law. The principle upon which the doctrine of estoppels rests, is, that a man shall not be permitted to allege any thing contrary to what he hath before solemnly done. It is true, the sale by the sheriff, is to have the same effect as his act, so far as it goes to make a title; but it is not his act so as to estoppe him from alleging the truth on any point whatever. He may allege a collusion between the sheriff and the purchaser; but he would be estopped to allege a collusion between himself and the purchaser.

On the whole, I am of opinion, that neither the second or third plea can be supported, and that the plaintiff must have judgment.

BOUDINOT, J.-Concurred in opinion with PENningTON, Justice. Judgment for the plaintiff.