APPEAL by the defendant, the Trustees of the Canton Christian College, from an interlocutory judgment of the
Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of June, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant's demurrer to the complaint in an action upon a covenant of warranty.
Mornay Williams, for the appellant.
John C. O'Conor, for the respondent.
Plaintiff is a Missouri corporation. Defendant is a domestic corporation. The complaint sets up an action for damages on breach of covenant of warranty, contained in a deed conveying lands situate in St. Louis, Mo., executed and delivered by defendant at the city of New York to plaintiff's predecessor in title. Plaintiff, a remote grantee through several mesne conveyances, sues defendant as original covenantor. The breach alleged is a judgment of eviction from a portion of the lands conveyed in a suit brought in the Circuit Court of the city of St. Louis, Mo., by the holder of an older and better title, of which suit defendant had notice.
The defendant demurred upon the ground that it appears on the face of the complaint that the court has no jurisdiction of the subject of the action because it appears on the face of the complaint that the action is for damages for alleged breach of warranty in a deed of real property lying wholly within another State, to wit, the State of Missouri, and also that the complaint does not state facts sufficient to constitute a cause of action. The Special Term overruled the demurrer upon the ground that the complaint stated facts sufficient to constitute a cause of action and from the interlocutory judgment entered thereon defendant appeals.
It is well established that a covenant of warranty runs with the land and that eviction, actual or constructive, by elder title constitutes a breach. A cause of action accrues upon the breach to a remote grantee against the original covenantor. The question presented is whether such cause of action is transitory or local. This depends upon the question whether the
cause of action is based upon privity of contract or privity of estate.
In Clarke v. Priest (21 A.D. 174) WILLARD BARTLETT, J., said: 'A covenant is said to run with the land when such covenant, given by a prior owner, inures to the benefit of the subsequent owners in the chain of title. Until breach, all covenants for title run with the land. Under the common-law doctrine of covenants, according to the weight of American authority * * * the covenant of warranty and the covenant for quiet enjoyment refer to the future, and, hence, run with the land. * * * Of the covenants of warranty and quiet enjoyment there is no breach until eviction, and hence no cause of action can arise until that time. There is, therefore, no conflict of interest between successive holders of the title. An earlier grantee of the land who has parted with his title cannot recover against his covenantor until himself compelled to respond on his own covenants to his grantee. (Withy v. Mumford, 5 Cow. 137; Rawle on Covenants of Title, § 215.)'
In Mygatt v. Coe (147 N.Y. 456) O'BRIEN, J., said: 'It must be regarded as the law of this case that privity of estate is essential to carry covenants of warranty and quiet enjoyment to subsequent grantees in order to support a right of action by them against the original covenantor, when there is an eviction by paramount title. It was so held by a majority of the Second Division when the case was there, and we felt constrained, when the case was here, to follow that doctrine. (142 N.Y. 82.)'
In the same case (142 N.Y. 78) FINCH, J., said, referring to the first appeal (124 N.Y. 212): 'The majority of the court held that privity of estate is essential to carry covenants of warranty to subsequent grantees so as to support a right of action by them against the original covenantor whenever evicted by a title paramount to his; that a covenant of warranty made by one having neither title nor possession, and so no estate in the land, will not run with it into the ...