Summary
In Israel v. Brooks, 23 Ill. 575, the court was reversed by the appellate court because it instructed the jury that "the discharge of the plaintiff by the examining magistrate is prima facie evidence of the want of probable cause, and sufficient to throw upon the defendant the burden of proving the contrary."
Summary of this case from Groda v. American Stores CompanyOpinion
(June Term, 1851.)
1. Where a deed for land, after setting forth the parties, the description of the land and the interest conveyed, goes on as follows: "to have and to hold the above described piece or parcel of land, free and clear from me, my heirs, executors, administrators and assigns, and from all other persons whatsoever, unto the said," etc. Held, that this clause contained a covenant for quiet enjoyment.
2. No precise or technical language is required by law in which a covenant shall be worded, any words which amount to or import an agreement, being under seal, are sufficient.
APPEAL from Caldwell, J., at HYDE Spring Term, 1851.
This was an action upon the covenant contained in the following deed:
"This indenture, made this 24 August, 1839, between William S. Douglas and John Midgett, both of the county of Hyde and State of North Carolina, witnesseth: That the said William S. Douglas, for and in consideration of the sum of $120 to him in hand paid by the said John Midgett, the receipt and payment of which is hereby acknowledged, hath bargained and sold, and by these presents doth bargain, sell and convey to him, the said John Midgett, his heirs and assigns forever, a certain piece or parcel of land, situate and lying in the county and State aforesaid, in the settlement of Mount Pleasant, and beginning at, etc. (here the boundaries are described), containing 15 acres, more or less, to have and to hold the above described piece or parcel of land free and clear from me, my heirs, executors, administrators and assigns, and from all other persons whatsoever, unto him, the said (146) John Midgett, his heirs, executors, administrators and assigns.
"In witness whereof, I, the said William S. Douglas, hereunto set my hand and seal, the day and year above written.
"WILLIAM S. DOUGLAS. (SEAL)
"Sealed and executed in the presence of:
"REILY MURRAY,
"GEORGE H. SHILDON."
The declaration contained a count on a covenant of seizin, and also a count on a covenant of quiet enjoyment. The defendant pleaded the general issue — covenants performed. The following facts are agreed upon: The plaintiff took possession of the premises described in the deed, and continued in possession until the death of the defendant's intestate, the party to the said deed. After the death of the said intestate a suit in ejectment was brought against the plaintiff by one Samuel S. Pugh, who had paramount title to the premises. A judgment was recovered by him against the plaintiff. The said Pugh sued out a writ of possession and evicted the plaintiff from the premises on 26 February, 1850.
It is further agreed that if the court is of opinion that the plaintiff can recover, a judgment shall be rendered against the defendant for $120, with interest from 26 February, 1850. If the court is of opinion that the plaintiff cannot recover, it is agreed that judgment of nonsuit be entered against the plaintiff.
The court on the said case agreed is of opinion that the plaintiff is entitled to recover on the first count mentioned; and thereupon it is considered that the said plaintiff recover against the said Israel Brooks, etc. From this judgment the defendant appealed.
(147) Donnell for plaintiff.
Shaw for defendant.
This cause is here upon a case agreed. The declaration contains two counts — one on a covenant of seisin, the other upon a covenant of quiet enjoyment. It is agreed that if upon either count the plaintiff is entitled to a recovery, judgment shall be rendered for him for the sum set forth. The alleged covenants are contained in a deed of bargain and sale for a tract of land sold by William S. Douglas, who is now dead, to the plaintiff. The deed, after setting out in the premises the parties to it, and specifying the land and the interest conveyed, goes on as follows: "To have and to hold the above described piece or parcel of land free and clear from me, my heirs, executors, administrators and assigns, and from all other persons whatsoever, unto the said John Midgett," etc. Midgett was sued and turned out of possession by paramount title.
We are of opinion that the clause in the deed as above set forth contains a covenant for quiet enjoyment. The defendant, through his counsel, insists that the deed contains no covenant whatever. It is true, the word covenant or agreement does not appear in it, nor is it necessary that either of them should. No precise or technical language is required by law in which a covenant shall be worded, any words which amount to or import an agreement are sufficient, a covenant being an agreement or contract under seal. Platt on Covenants, 28; Lamb and Morris, 1 Bur., 290. The words in the deed we are considering, upon their face, import a promise or agreement on the part of Douglas, the vendor, that Midgett shall enjoy the premises free from disturbance from any one claiming by title paramount, and that is a covenant for quiet enjoyment. Woodward v. Ramsay, 9 N.C. 335. The language of the deed is that he "shall have and hold — that is, possess — the land free and clear," etc. It is objected, however, that these words are in the habendum of the deed, and constitute a part of it. By themselves, they properly constitute no part of the habendum. The office of the (148) habendum is to point out the interest conveyed. The words "free and clear," etc., go beyond that, and, in connection with the habendum (technically so called), are unmeaning. But it is a rule in the construction of deeds that every clause and word, if possible and consistent with law, shall have a meaning given to it. If, however, they do constitute a part of the habendum they certainly are out of place. But that circumstance ought not to deprive them of their existence and legal effect. It is the office of the premises to specify the parties to the deed and the thing granted; if, however, the name of the grantee appears for the first time in the habendum it is sufficient. Hafner v. Irwin, 20 N.C. 570; Coke on Lit., 26 b, note. Now, if a grantee may appear for the first time in the habendum, we can see no good reason why a covenant may not. Had the words we are considering appeared in a separate clause to themselves, there can be no doubt as to their being a covenant for quiet enjoyment. The whole clause, however, is a covenant for quiet enjoyment. An habendum clause is not essential to the validity or completeness of a deed, it may be entirely omitted without affecting its validity. The parties, the thing granted, and the quantity of estate may all be contained in the premises — and such is the modern or most frequent mode of conveyances. 4 Kent Com., 468.
It is the duty of this Court to look into the whole case, and to pronounce such judgment as the court below ought to have done; and, believing that the deed contains a covenant for quiet enjoyment, judgment is given to the plaintiff.
PER CURIAM. Affirmed.
Cited: Fishel v. Browning, 145 N.C. 79.
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