CASES

IN THE

SUPREME COURT

OF

NORTH CAROLINA.

EAMES v. ARMSTRONG.

[146 N. C. 1, 59 S. E. 165.]

DEEDS.-Covenants of Seisin in a deed extend only to guarantee the bargainee against any title existing in a third person and which might defeat the estate granted, and does not embrace a title that may be already in the grantee. (p. 438.)

DEEDS-Estoppel Against Grantee.-A grantee is estopped from setting up title previously acquired against his vendor. (pp. 438, 439.)

DEEDS Taxes-Validity.-The fact that land is listed in the name of some one other than the owner does not invalidate a tax deed, unless it is shown that the true owner listed and paid the taxes on it. (p. 439.)

DEEDS Taxes-Validity.—If land belonging to the wife has been listed for taxes in the name of her husband, who has no interest therein, a tender to redeem made by him, notwithstanding the birth of issue, when he is not acting for her or claiming under her, does not invalidate the tax deed. (p. 440.)

DEEDS Taxes-Right to Attack.-No one can question the title acquired by a tax deed, without first showing that he or the person under whom he claims had title to the property at the time of the sale, and that all taxes due upon the property have been paid by such person, and a husband in whose name his wife's land was listed for taxation cannot, in his own right, attack a tax deed to the premises. (p. 440.)

DEEDS Breach of Covenant of Seisin-Measure of Damages. Generally, the purchase money is the measure of damages for the breach of a covenant of seisin; yet if the covenantee perfects his title for a less sum, his recovery is limited to the amount paid. (p. 441.)

DEEDS-Covenants of Seisin-Right to Sue for Breach. If the grantee in a deed with covenants of seisin procures the deed to clear the title to the property which his wife had formerly held subject to a tax deed to the grantor, and thereafter both husband and wife convey the land to another, whose possession is never disturbed, the husband cannot recover for an alleged breach of the grantor's covenant of seisin. (p. 442.)

DEEDS.-Covenants of Seisin are Covenants of Indemnity, and do not run with the land. (p. 442.)

J. S. Henderson, for the plaintiff.

T. F. Kluttz, L. H. Clement and T. J. Jerome, for the defendant.

2 CONNOR, J. This was an action for breach of covenant of seisin. The facts, in regard to which there is no controversy, are as follows:

The tract described in the deeds and in the complaint as the "Russell Gold Mine," containing three hundred and fifty-six acres, was, prior to May 5, 1902, the property of Mrs. Elizabeth Eames, the wife of plaintiff. The tract described as the "Coggins Meeting House," containing three acres, was, at said date, the property of plaintiff. On May 6th, 1903, W. D. Clark, sheriff of Montgomery county, executed to defendant a deed, conveying, by the same metes and bounds set out in the complaint, the "Russell Gold Mine," containing three hundred and fifty-nine acres. The preamble to the deed is in the following words: "Whereas, at a sale of real estate for the nonpayment of taxes, made in the county aforesaid on the fifth day of May, 1902, the following described real estate was sold, to wit: Three hundred and fiftynine acres in El Dorado Township, listed by Richard Eames," etc. In this 3 and all other parts, the language of the deed conformed to the provisions of the statute (Revival, sec. 2906). The deed was duly proven and recorded May 7, 1903.

On May 7, 1903, defendant, C. A. Armstrong, and his wife, in consideration of two thousand three hundred dollars, executed a deed to plaintiff, conveying, by metes and bounds as in the deed to them, the "Russell Gold Mine," containing three hundred and fifty-six acres, and, by a separate description, the "Coggins Meeting House," of three acres. This deed was duly proven and recorded, and contains the following covenant: "To have and to hold the aforesaid tracts of land; . . . . and the said parties of the first part covenant that they are seised of said premises in fee and have a right to convey the same in fee simple; that the same are free and clear from all encumbrances."

On May 9, 1903, plaintiff and his wife conveyed both said tracts to George T. Whitney in consideration of five thousand dollars. Plaintiff paid to defendant the consideration of two thousand three hundred dollars named in his deed. Plaintiff alleges that, at the time defendant executed the deed of May 6, 1903, and made the covenant therein, he was not seised of either of the tracts therein conveyed, and had no title thereto, and for breach of said covenant demands as

damages the amount of the purchase money. Defendant denies the allegation, and alleges seisin, etc.

In response to issues submitted, the jury found that, at the date of the deed, the "Coggins Meeting House" was the property of plaintiff, and, under the instructions of the court, found that plaintiff was not entitled to recover any damage on account thereof; that defendant was seised of the "Russell Gold Mine," and that there had been no breach of the covenant in respect thereto.

It was in evidence that plaintiff was desirous of selling both tracts to one Whitney, and had entered into a contract to do so for the sum of five thousand dollars; that his attorney, residing in Salisbury, went to the town of Troy, Montgomery county, for the purpose of examining the title; that a few days thereafter 4 plaintiff met defendant in Troy, and, after some negotiation, agreed to pay him two thousand three hundred dollars for deed with full covenants; that some question was raised in regard to whether the sheriff's deed covered the "Coggins Meeting House," whereupon plaintiff said that, while the land was his, defendant could put it in the deed to satisfy Mr. Whitney, and that no trouble would ever come to him on account of it. Upon the execution of the deed by plaintiff and wife to Whitney, he went into and has continued in the unmolested possession of the land.

His honor instructed the jury to answer the issues. Judgment was thereupon rendered for defendant. Plaintiff's exceptions are noted in the opinion. Plaintiff appealed.

We were of the opinion, when this case was here at the fall term, 1906, that the covenant of seisin extended to the "Coggins Meeting House" tract: 142 N. C. 506, 55 S. E. 405. It appears that, at the time the deed was made by Armstrong to the plaintiff, the title to that tract was in the plaintiff, and that this was well known to him. It further appears that plaintiff immediately conveyed the same land to Whitney, who went into possession and remains therein. In Fitch v. Baldwin, 17 Johns. 161, it is said: "The covenant of seisin extends only to guarantee the bargainee against any title existing in a third person, and which might defeat the estate granted." In Furness v. Williams, 11 Ill. 229, Treat, C. J., says: "It is attempted on the part of defendant to establish a breach of the covenant by proving that he was himself seised, instead of his grantor. The law does not allow this to be done. The covenant of seisin extends only to a title existing in a third person. It does not embrace a title that may be already in the grantee. The grantee is estopped from

setting up the title previously acquired against his vendor": 5 Tiedeman on Real Property, sec. 851; Rawle on Covenants, 431; Jones on Real Property, 444; 11 Am. & Eng. Ency. of Law, 442. His honor, therefore, correctly instructed the jury to answer the issue in regard to that tract.

For the purpose of showing that defendant was not seised of the "Russell Gold Mine" tract, plaintiff sought to attack. the deed executed by the sheriff to the defendant of May 6, 1903. To this end he offered to show that a tender of the taxes, interest, cost, etc., was made by his attorney and the attorney of Mr. Hambley to the defendant, on May 5, 1903, and declined. He further offered to show that plaintiff tendered the amount to both the defendant and the sheriff, and that both were declined. He further offered to show that defendant had not given the notice required by the statute before calling for the deed. To each of the questions bearing upon these contentions defendant objected. His honor ruled "that plaintiff not having shown that he had title to the 'Russell Gold Mine' tract of three hundred and fifty-six acres at the time of the sale of the same for taxes, on May 5, 1902, and not having shown that he now claims the same under the person who had the title at the time of such sale, and not having shown that all taxes due upon the property had been paid to him or the person who had the title at the time of the sale, the court held that the plaintiff could not be permitted to question the title which had been acquired by the defendant under the sheriff's tax deed, nor could the plaintiff question the validity of the deed." The objection was sustained, and plaintiff excepted. It will be observed. that the land conveyed by defendant to plaintiff was, at the time it was listed for taxation, sold and the deed executed by the sheriff, the property of Mrs. Eames. The deed recites that it was listed by Richard Eames. This, we think, in view of the provisions of section 2894 of Revisal, immaterial. It is therein expressly provided that the fact that the land is listed in the name of some one other than the owner shall not invalidate the deed, unless it is shown that the true owner listed and paid the taxes on it. No evidence was offered that Mrs. Eames did either. The tender to redeem was not made by Mrs. Eames or anyone acting for her or claiming under her. That her husband had no "estate or interest" in the land, notwithstanding birth of issue, is settled: Tiddy v. Graves, 126 N. C. 620, 36 S. E. 127; Hallyburton v. Slagle, 132 N. C. 947, 44 S. E. 655. Plaintiff, however, insists that he had a right to show that the defend

ant failed to give the notice required by section 2903 of Revisal, being sections 15-17, chapter 558, Laws of 1901, and thereby invalidated the deed, under the decision of this court in King v. Cooper, 128 N. C. 347, 38 S. E. 924, and Matthews v. Fry, 141 N. C. 582, 54 S. E. 379. It will be observed that in both of those cases the controversy was between the owner of the land and the purchaser, whereas section 2909 of Revisal, which is the same as section 20, chapter 558, Laws of 1901, provides: "In all controversies, actions and proceedings involving the title to real property claimed and held under and by virtue of a deed made substantially as required by this chapter, the person claiming title adverse to the title conveyed by such deed shall be required to prove, in order to defeat the title which such deed purports to convey, either that such real property was not subject to taxation for the year or years named in the deed, or that the taxes had been paid before the sale, or that the property had been redeemed from the sale according to the provisions of this chapter, and that such redemption was had or made for the use and benefit of the persons having the right of redemption under the laws of this state, or that there had been an entire omission to list or assess the property, or to levy the taxes or to sell the property. No person shall be permitted to question the title required by a sheriff's deed, made pursuant to this chapter, without first showing that he, or the person under whom he claims, had title to the property at the time of the sale, and that all taxes due upon the property have been paid by such person under whom he claims title." It is clear that the plaintiff never had any title to the property and never had any claim thereto under the owner thereof. He is, in contemplation of law, an absolute stranger to the title. If any effect is to be given to the plain language of the statute, it is manifest that his honor's ruling is correct. It is difficult to see how or why plaintiff should be permitted, as a volunteer, to come into the court to attack a deed, the validity of which can in no possible contingency affect him. Mrs. Eames, the owner of the property, assuming for the sake of the argument that the defendant's title was not good as against her, has parted with her title, and there is no person in existence who can attack the title of her grantor or disturb his possession. The facts presented upon the record are peculiar. At the time the land was listed for taxation it was the property of Mrs. Eames. The tax not having been paid on May 5, 1902, the sheriff sold it for nonpayment of taxes, when the defendant Armstrong became the purchaser. It appears that plaintiff