Jackson v. Hanna, 53 N.C. 188, 8 Jones 188 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 188, 8 Jones 188

EMANUEL JACKSON v. PETER HANNA, Administrator.

Whore a grantor of land in another State, entered into a covenant of quiet enjoyment, and after his death, Ms widow recovered of the grantor a sum certain in lieu of her dower, (the law of that State subjecting all lands to dower, of which the husband was seized during coverture) it was Held that such recovery was an eviction, and the covenantee was entitled’to recover the amount paid.

Where a covenantee sued on his covenant for quiet enjoyment, on account of a recovery of a sum certain off of him by the widow of the covenantor for her dower, and it appeared that only a part of the recovery was paid when the suit was brought, and the remainder afterwards and before the trial, it was Held that the covenantee was entitled to recover the whole sum.

The action on a covenant of quiet enjoyment is transitory, and though entered into in another State, may be sued on in this State.

This was an action of COVENANT, tried, before SauNDEbs, J., at the Special Term (June, I860,) of Bichmond Superior Court.

The plaintiff declared on a covenant contained in a deed to him from the defendant’s intestate, one Eli Meekins. The covenant is in these words : “ and I do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend all and singular the said premises, unto the said Emanuel Jackson, his heirs and assigns, against myself and my heirs, and against all persons whomsoever, lawfully claiming, or to'claim the same, or any part thereof.”

The plaintiff entered into possession of the land, which is in South Carolina, during the life-time of the covenantor, and has continued in possession ever since. After the death of the covenantor, his widow filed a petition for dower in the courts of South Carolina. It was proved that by the laws of that State, the widow of one dying intestate, is entitled to her dower in all the land of which her husband was seized during the coverture, and that the jury may lay off her dower in the land, or may, in their discretion, if, in their opinion, such assignment cannot be made without injury to the interests of the parties concerned, ascertain the value of her dower, and direct the value of the same to be paid in money. In this case, the jury ascertained the value of the dower interest, and there was a verdict and judgment against the plaintiff in this case, for $590,68, with interest on $516,66, until paid, and costs $52,33, and an execution issued for the same. Before the bringing of this suit, the plaintiff paid the costs of the proceeding for dower, to wit, $52,3¿, and dui-ing the pendency of the suit, and before the trial, he paid the whole judgment, amounting to $712,17.

There was a verdict for the plaintiff for the whole amount, subject to the opinion of the Court upon the law of the ease, with leave to set aside the verdict and enter a nonsuit, in case it should be against the plaintiff, or otherwise should give judgment for whatever the plaintiff was entitled to.

His Honor, on consideration, gave judgment for the amount of the costs paid, ($52,33) and the plaintiff appealed.

í¿. II. Battle, for the plaintiff.

Strange, for the defendant.

Manly, J.

We interpret the warranty in the deed of Eli Meekins, of 7th October, 1851, a covenant for quiet enjoyment, and after some reflection, conclude that the recovery by the widow of Meekins of the judgment of $590,68, the the suing out of execution and enforcing the collection of the same is, under the circumstances, an eviction, which entitles the plaintiff to his action of covenant on the warranty.

It seems, by the law of South Carolina, the widow is entitled to dower in all lands of which her hnsband was seized during the coverture, and that 'the jury may either assign dower by an allotment of a portion of the land, or where the interests of all concerned require it, by an assessment of the value of the same, to be paid her in money. Dower was assigned in the latter mode, a judgment was rendered against Jackson for the same, a fieri facias sued out and the moneys made thereon. If dower had been assigned by an allotment of land, followed on the part of the widow by an action of ejectment, and writ of possession executed* the case would have been free from all doubt. The case before us, does not differ substantially from this. Dower is assigned in the land in a different mode, by force of the law, and the plaintiff makes satisfaction for the same, under the compelling process of the law. This is the same, in all essential particulars, as a dispossession under a superior title pro tanto — both being, in substance, a disturbance of the possession by process of law.

It has been held in our State, in the case of Coble v. Wellborn, 2 Dev. 388, that the purchase of an outstanding title established by an action of ejectment, was not an eviction. The case differs from the one before us, in the important particular, that the purchase was voluntary and for the sake of peace — there being no actual coercion or enforcement of the superior title. The plaintiff has lost a part of the thing bought, occasioned by the right or claim of a third person enforced at law. This is eviction, and the judgment of the Court below, in that particular, was correct.

We think there was error, however, in respect to the damages held by the Court to be recoverable in the action. The part of the judgment paid after the suit, and before the trial, was also recoverable. With respect to damage, we apprehend the law to be that proof of such may extend to all facts, which occur .'Or grow out of the injury, even up to the day of the verdict — excepting those facts, which not only happened since the commencement of the pending suit, but do, of themselves, furnish sufficient cause for a new action. Indeed, it is upon this general principle, that interest is computed up to the time of the verdict in an action for the non-payment of a Sum of moneyi Mr. Sedgwick, in his work on damages, says (page 10á, 6) “ It is agreeable to the principles of the common law, that whenever a duty has been incurred pending the suit, for which no satisfaction can be had, by a new suit, such duty shall be included in the judgment to be given in the action already depending.” The enforcing of the judgment, which constituted the eviction, having been partly accomplished before the suit, it follows upon the principles laid down, that all the damage, resulting from the eviction, should be given in the present suit.

There are two cases in the Massachusetts reports, which appear to be somewhat analogous to this, upon the present point; Leffingwell v. Elliott, 10 Pick,; Brooks v. Moody, 20 do., 474, where it is held, in actions upon covenants of warranty against incumbrances, the plaintiffs may recover the amounts fairly and justly advanced to remove the incumbrances, although paid after the suit begins.

A question has been raised whether this be a local or tram sitory action, and therefore whether it be well brought in this State. The action being upon contract, is transitory, and is well brought. This point is fully discussed and settled in the case of Thursley v. Plant, 1 Sann., 211, b. note 6.

There should have been a judgment below according to agreement, with respect to the points reserved, for the entire amount of damage incurred to the trial, and this judgment will be accordingly rendered here.

Per Curiam,

Judgment reversed.