Douglass v. Lewis
Douglass brought his action in the district court of the Second judicial district of the territory of New Mexico, September 11, 1883, for the breach of an alleged covenant of seisin in a deed made by Lewis and his wife to him, purporting to convey the title to 160 acres of land.
The petition averred that the defendants, by their deed of May 13, 1882, 'did convey and warrant to the plaintiff, his heirs and assigns, in fee-simple, certain real estate,' describing it, and then continued: 'And the defendants did by their said deed, for themselves, their heirs and personal representatives, covenant with the plaintiff, his heirs and assigns, amongst other things, that at the time of the making, ensealing, and delivery of said deed, and 'at the time of the execution of said conveyance,' they, the said defendants, were lawfully seised of an indefeasible estate, and in possession of a title in fee-simple in and to the said property, and then had good right and full power to convey the same. Nevertheless plaintiff avers that the said tract of land in said deed described, and by said defendants bargained and sold to said plaintiff, was not the property of said defendants, and at the time of the making and delivery of said deed they, the said defendants, were not lawfully seised of an indefeasible estate in fee-simple in and to said real estate, nor has they then good right and full power to convey the same, but, on the contrary thereof, the government of the United States had at the time of the making and delivery of said deed, and still has, lawful right and title to said real estate; and plaintiff avers that in consideration of the conveyance and sale of said lands in said deed described and set forth, he paid to said defendants the sum of five thousand three hundred and thirty-three dollars and thirty-three cents, ($5,333.33;) that he, said plaintiff, has further expended and laid out large sums of money in building houses upon and improving said land, to-wit, four thousand dollars, ($4,000;) and so the plaintiff says that they, said defendants, have not kept the said covenants according to the true intent and meaning of said deed, and according to the statute in such case made and provided, but have broken the same, to the damage of plaintiff in the sum of ten thousand dollars, ($10,000.)'
Profert of the deed was made by the declaration, and defendants filed a demurrer, October 1, 1883, craving oyer of the condition of the said deed and covenant, which being read and heard, they insisted that the declaration and the matters therein contained, etc., were insufficient in law. Pleas were also filed, alleging that the deed was not defendants' deed, denying that the defendants covenanted with the plaintiff that they were lawfully seised, and averring that it was not true that they had not kept their covenants. Subsequently, and on the 19th day of October, an amended special demurrer to the declaration was filed, averring 'that the said deed upon oyer contains no such covenant as the one alleged in the said declaration of the plaintiff,-that is to say, that the said deed, having some express covenants therein contained, and among which is not the covenant declared upon in the said plaintiff's declaration, to-wit, no covenant of seisin, or 'that the said covenantors were at the time of making the said deed seised of an indefeasible title in fee-simple' to the lands conveyed; and inasmuch as the parties have fully expressed their intention and agreements at the time of making the said deed by the express covenants therein contained, there can be none added by construction or otherwise; and, further, defendants say the said declaration alleges no eviction, and therefore he, the said plaintiff, ought not to have and maintain his said action,' etc.
This, upon argument, was overruled November 3, 1883, the district judge filing his opinion thereon January 8, 1884, which thus concludes: 'In the case at bar I am of opinion that the express covenant of warranty is independent of the covenant of seisin implied by the statute, and that an action may be maintained upon the latter, and can only be met by plea and proof of good title in the grantor at the time of the execution of the deed.'
On the 16th of May, 1884, the defendants filed two pleas, alleging in the first that at the time of making the deed the grantors were seised and possessed of the said real estate, with full power and authority to convey according to the effect of the deed; and in the second, that at the time of making the said deed the grantors 'were lawfully seised of an indefeasible estate, and in possession of a title in fee-simple in and to the said real property, and then had good right and full power to convey the same,' according to the form and effect of said deed. The plaintiff demurred to the first of these pleas. The court sustained the demurrer, and the case went to trial on the issue made up on the second plea. Evidence was given on behalf of the plaintiff tending to show that the United States had assumed ownership and control over all the land in controversy, and had disposed of a portion of the same, and that the defendants claim that the land had been granted by Spain or Mexico to one Sandoval, who devised it to one of his relatives, from whom it had descended to the grantor of defendant Lewis, but that the claim of Sandoval had never been presented to any tribunal or officer of the United States for adjudication. All the documentary evidences of title offered on defendants' behalf, except the will of Sandoval, and papers relating thereto, bore date in 1879, or subsequent thereto. The oral testimony tended to show that Sandoval and his descendants were in possession of the land for a number of years, probably from the date of the treaty of Guadalupe Hidalgo.
Plaintiff admitted that he was put into possession of the land, and had never been disturbed in the possession, and, in effect, that he had never made demand for restoration of the consideration money, or what might have been expended for improvements, nor had any demand been made on him to surrender the land prior to the commencement of the suit, nor had he offered to rescind or to restore the land. The court refused to admit the muniments of title relied on by the defendants, and charged the jury as follows: 'There is no question of fact in this case for you to pass upon. There are only questions of law, which it is the duty of the court to pass upon; and the entire responsibility of passing upon such questions is with the court. The court instructs the jury that it is their duty, under the law and the evidence in this case, to find a verdict for the plaintiff, and assess his damages at the sum of $5,333.33, being the amount of the money paid by him for the land in question.' The jury returned a verdict accordingly, and motions for a new trial and in arrest of judgment were made by the defendants, and severally overruled, and judgment rendered on the verdict. The case was carried by appeal to the supreme court of the territory, which court reversed the judgment of the district court, and dismissed the cause, (9 Pac. Rep. 377,) from which judgment of the supreme court the pending writ of error was prosecuted. The supreme court of the territory held that the effect of the introduction into the deed of an express covenant of warranty is to deny to the purchaser the benefit of the statutory covenant of seisin, and said: 'As there is no pretense in this case of an eviction, or any claim whatever of a breach of the covenant of warranty, it follows that the action cannot be maintained, and that it was error in the court below to order a verdict for the plaintiff, and in overruling the motion in arrest of judgment.' (9 Pac. Rep. 380.)
J. H. McGowan and C. W. Holcomb, for plaintiff in error.
S. Shellabarger and J. M. Wilson, for defendants in error.
Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.
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