OPINION BY LUTHER MARTIN, ESQUIRE,

ON A

COVENANT OF WARRANTY.

It is stated to me that William Dudley supposing himself to be seized in fee; and being supposed to be so seized of certain property, did in his life time and shortly before his death mortgage the same to Thomas Williams for an amount nearly equal to the then value of the said land, and died intestate and insolvent; that in consequence Thomas Williams and Joseph Williams took out Letters of Administration on his estate. It is stated that in Massachusetts the administrators of an insolvent estate have the management of the real as well as the personal estate; that they may alien the real estate of such insolvent, which are liable to his debts, under a permission of court granted upon application. It is further stated that Thomas Williams, to whom the said property was mortgaged, did convey all his interest and title by virtue of the said mortgage, to Increase Sumner and wife; and that supposing there was an equity of redemption remaining in said Dudley, at the time of his death, under the direction of the court, the administrators did sell that supposed equity of redemption to Sumner and wife, for 3051. 58. Massachusetts currency: circumstances are stated with regard to the situation of the records to free all parties from imputation of fraud; and the deeds executed are stated to have been drawn by, or corrected by Sumner, a great legal character; whereas the grantors are stated to be persons without particular legal knowledge.

It is further stated that the heir of William Dudley, discovering that the lands aforesaid were held by his father in fce-tail, and not in fce simple, as William Dudley supposed, has recovered from Mrs. Sumner the lands in question; and that in consequence Mrs. Sumner has commenced an action or actions of covenant, of some kind, to recover against Thomas Williams and Joseph Williams one or both; and that she founds her right of recovery upon the deeds thus executed, the monies paid in consequence, and the warranties or covenants therein contained.

And I am requested to consider the subject, and, as far as in my power, give an opinion-Whether she has a right to recover any thing; and if so, to what extent has she a right to recover ?

Upon the case so stated, if Mrs. Sumner has a right to recover, it must be founded upon actual warranty made, which may operate as a real covenant, and on which the writ of warrantia chartæ may be issued, and on which if real actions had been brought against Mrs. Sumner she might have vouched the grantor or grantors to warranty—or it must be on such words in the conveyances, as will operate as personal covenants, on which personal suits may be brought, and damages only obtained. Or she must be entitled to recover upon an equitable principle, that having paid money, and the consideration for which it was paid having failed, she ought to recover back the money so paid.

I will examine the subject under each point of view.

And here it will be necessary to distinguish the case as it relates to Thomas Williams the morgagee, and to the same Thomas and Joseph as administrators of Dudley. For Thomas alone sold to Sumner and wife the legal estate or interest under the mortgage. For this transaction and its consequences Joseph is in no manner answerable.

Thomas and Joseph as administrators conveyed a supposed equity of redemption, which was thought to have remained, after the said mortgage, in the said Dudley. This was their joint act, and for the consequences of this act they are jointly answerable, if answerable at all. verable

First then as to the deed by Thomas Williams, Dudley had → land to him in fee, but to be defeasanced by the pay

Conver

ment of a sum of money.

This deed operated to give to the said Thomas Williams a determinable or base fee, liable to be defeated by the entry, or action of the heir in tail.-Vide Co. Lit. 331. Hargrave's notes with the authorities there cited.

Thomas Williams had therefore, when he sold and conveyed to Sumner and wife, a base fee, and, had not the issue in tail entered and brought suit within the time limited, this fee would have become undeterminable; and Mr. Sumner and wife would have had an indefeasible estate.

Thomas Williams by his deed conveys and makes over “the above recited deed and bond" that is the mortgage deed and Dudley's bond "together with all the right, title, interest and estate in and to the same, which he had in his own right in and to the same, and to the lands in the said deed described," he afterwards covenants with Sumner and wife, "that said premises are free and clear of all incumbrances by him the said Thomas or by his knowledge made saving and excepting, &c.

He further covenants "that neither himself, nor any person with his procurance or consent will do any thing to invalidate the aforesaid deed or bond, but that they may remain as a part of the title to the said described premises," &c.

In this deed therefore there is nothing, which indicates the intention to transfer any thing but the interest he might have, be that what it might, and the covenants only to go to his own

acts.

Should it be suggested that the words "give and grant” create by legal construction a warranty for the life of the person, I answer that on such warranty the only remedy Mrs. Sumner could have, would be by the writ of warrantia chartæ, and not by personal action of covenant for damages. But what is conclusive, when in a deed, containing the words "give and grant," there is an express special warranty, this shall controul what would be the legal effect of the words "give and grant," if they were not accompanied by such special warranty;" for the insertion of an express covenant on the part of the grantor will qualify and restrain its force and operation within the import and effect of that covenant, as the law, when it appears by express words how far the

parties meant the warranty should extend, will not carry it further by construction.

Vide Co. Lit. 383-Hargrave's note, 232.

On the deed therefore given by Thomas Williams to Sumner and wife, no suit can be sustained against Joseph Williams, because he was no party thereto. Nor can any writ of warrantia chartæ be brought to recover lands in value, because, though the words, "give and grant," if they stood alone would justify such. remedy, yet being qualified by the subsequent engagement, which not only shews that the said Thomas meant to convey only his own right, but likewise meant to confine his warranty to his acts, their words are restrained and such remedy cannot be had.-Nor can, I presume, any action of covenant, as a personal action for damages, be founded upon the said deed, because, as he covenants only against his own acts, and, as I believe, it is not suggested that he has done any act in violation of his covenants, no breach can be shewn on account of which damages ought to be recovered.

The next question then upon this conveyance made by Thomas Williams to Mr. and Mrs. S. will be whether, as he received 5401. 28, as the consideration for his interest so conveyed, and as by the recovery under the title of the heir in tail, that consideration is defeated, Thomas Williams is not answerable for the consideration money?

It has been determined, that in many cases, where money has been paid for a consideration which happens to fail, it may be recovered back.

Shore vs. Webster 1 Term R. 732 was the case of money paid for an annuity, which was not duly registered.

Brigg's case, Palmer 364, cited in Esp. Nisi Prius, was where money was paid to defendant on a promise to make her a lease of land, and before the lease made the defendant was evicted, and consequently could not make the lease promised.

With regard to real and personal property there is certainly a wide difference; whoever having personal property in possession, sells it as his own, is thereby considered as warranting the proper

ty, and if it is recovered from the purchaser he may have his reme. dy against the vendor.

Lord Raymond 593-Salk. 210. 3 Mod. 261.

Possession of personal property is considered as the indicium of title;-But it is there determined to be different as to real property, because there the purchaser may search into the title; and caveat emptor is there the rule. Rd. 593. Sd. 210.

Co. Litt. 102a states "that, tho' by the civil law every man is bound to warrant the thing which he selleth or conveyeth, albeit there be no express warranty, yet the common law bindeth him not, unless there be a warranty in deed or in law; for caveat emptor."

As to the sale of real property, although, if the want of the title of the seller is discovered before a conveyance executed, and while every thing is in fieri, that is before the final conveyance, money paid may be recovered, yet it seems settled, that after conveyances actually made and accepted, if the land is evicted, and the deed contains no warranty or covenants, on which suit may be brought, the purchaser is without remedy.

And the reason appears clearly to be this, it is presumed that in such case, the purchaser sought into, and was satisfied so well with the title, that he was willing to take the property at his own risqué, and not to hold the seller answerable, as otherwise he could have had in the formal final contract, that is the deed, the provision made, which would stipulate the liability of the seller, in case the land was evicted. The law upon this subject is discussed in Evans' Essays, action for money, &c. Cap. 2. Sec. 3. Fonblanque Book 1st. Cap. 5. Sect. 8th. In the note at the beginning of the 8th section, page 370, Fonblanque takes the dis. tinction between where the consideration fails, or is discovered to fail, before the agreement is mutually performed; and where it is discovered after the agreement is mutually performed. If the failure of consideration is discovered before the mutual performance, then equity will interpose and relief may be had; otherwise not.

Now an agreement for the sale of lands is not mutually performed until the purchaser hath paid his money, and the seller conveyed the land.