Ragle v. Dedman

¶1— This action was commenced in the Pike Circuit Court, and on change of venue was sent to the Dubois Circuit Court. A demurrer for want of facts was sustained to appellees’ second and third paragraphs of answer, and carried back and sustained to the complaint. Appellants refusing to plead further, judgment was rendered against them, and in favor of appellees.

¶2The only error assigned is based on the action of the court in carrying back and sustaining to the complaint appellants’ demurrer for want of facts to appellees’ second and third paragraphs of answer.

¶3Briefly, the facts sufficient to present the question here to be decided may be stated as follows: On March 14, 1906, appellees and Oliver Dedman conveyed certain real estate in Pike county, Indiana, by statutory warranty deed to appel*361lants. It appears that the land was bought and sold as an entirety, and the consideration therefor — $3,539.88—was paid in gross. The deed recites that the grantors were all the heirs at law of Hiram N. Dedman, deceased. At the time of the execution of the deed, there was a valid judgment against said Oliver Dedman, which was a lien on his interest in the land. Execution was issued on the judgment, and to prevent a sale of that interest, appellants, in May, 1907, were compelled to and did pay and satisfy said execution.

¶4This being an action for damages for breach of covenant against incumbrances, the question for decision is, Shall that covenant in the deed be construed as joint or several ?

¶51. 2. It is conceded that the grantors acquired title to the land by descent from Hiram N. Dedman, deceased, and that they held the same as tenants in common. This being true, even though the quantities of their estate or interest may have been unequal, there was unity of possession between them. 1 Washburn, Real Prop. (6th ed.) §876. They conveyed the land as a common estate. They all joined in a deed, which, by legislative enactment (§3958 Burns 1908, §2927 R. S. 1881), “shall be deemed and held to be a conveyance in fee-simple to the grantee, his heirs and assigns, with covenant from the grantor for himself and his heirs and personal representatives that he is lawfully seized of the premises, has good right to convey the same, and guarantees the quiet possession thereof; that the same are free from all incumbrances, and that he will warrant and defend the title to the same against all lawful claims. ’ ’

¶6The quoted provision of the statute is covered by the words “convey and warrant,” and must.be read into the deed as if written therein at full length. Jackson v. Green (1887), 112 Ind. 341, 14 N. E. 89; Dehority v. Wright (1885), 101 Ind. 382; Worley v. Hineman (1893), 6 Ind. App. 240, 33 N. E. 260. The deed contains no special provisions on the part of any of the grantors limiting the broad scope of the *362covenant against “all incumbrances,” nor is there any covenant inconsistent with the general one in this respect. Consequently, we have before us a deed in which the parties, to express their intention, employed clear and positive language. The subject-matter was the common estate, and a covenant against incumbrances, under our statute for ‘ ‘ quiet possession,” would attach and run with it. Whittern v. Krick (1903), 31 Ind. App. 577, 68 N. E. 694.

¶73. 4. Under the facts in this case, each of the grantors, at the time they executed the deed to appellants, had all the rights of a tenant in severalty, except that of sole possession (1 Washburn, Real. Prop. [6th ed.] §877) ; and in the exercise of that right, any one of them might have conveyed his interest, in which case any covenant in the deed would be limited to the interest granted. While such interest could not be conveyed in severalty, or described separately by metes, and bounds, yet it would be a transaction within the following rule: “In the case of parties demising or granting the separate interest of each in an estate, the covenant shall be considered co-extensive with the interest granted; and, therefore, these shall be several, where a several interest is granted; and joint, if a joint interest be granted.” Evans v. Sanders (1850), 49 Ky. 291.

¶8Appellees earnestly insist that the complaint is insufficient, for the reason that it fails to allege that the grantors intended to warrant more than their individual interest, and that it fails to show a consideration for one cotenant to warrant the title of the other.

¶95. *3636.*362The rights of the parties must be measured by their agreement as expressed in the deed. If the wording of that instrument was subject to more than one construction, it would be the duty of the court so to construe it as to effectuate the intention of the contracting parties. But as the language employed is not uncertain, there is no ground for construction, and the contract, as expressed in *363the deed, must be enforced as made, although, in the opinion of the court, it may seem in some respects inequitable. Cravens v. Eagle Cotton Mills Co. (1889), 120 Ind. 6, 21 N. E. 981, 16 Am. St. 298; Consolidated Coal, etc., Co. v. Mercer (1896), 16 Ind. App. 504, 44 N. E. 1005.

¶10As applicable to the facts in this case, Rawle, Covenants (5th ed.) §304, states the law as follows: “Whether the liability created by covenants for title be joint, or several, or joint and several, obviously depends upon the terms in which they are expressed. Where an obligation is created by two or more, the general presumption is that it is joint, and words of severance are required in order to confine the liability of the covenantor to his own acts. ’ ’ In support of this proposition the author cites Touchstone, 375; Carleton v. Tyler (1839), 16 Me. 392, 33 Am. Dec. 673; Donahoe v. Emery (1845), 9 Met. (Mass.) 63, 67; Platt, Covenants 117; Comings v. Little (1837), 24 Pick. 266; Click v. Green & Sadler (1883), 77 Va. 827. See, also, City of Philadelphia v. Reeves (1865), 48 Pa. St. 472; Ashburn v. Watson (1911), 8 Ga. App. 566, 70 S. E. 19.

¶117. In this ease there are no facts'before us indicating that the covenants were to be limited to the separate interests, as in the cases of Redding v. Lamb (1890), 81 Mich. 318, 45 N. W. 997; Evans v. Sanders, supra;but on the contrary, the wording of the deed imports a joint obligation, and under the authorities cited, the demurrer to each paragraph of the complaint should have been overruled.

¶12Judgment reversed, with instructions to overrule the demurrer to each paragraph of the complaint, and for further proceedings not inconsistent with this opinion.

¶13Note. — Reported in 98 N. E. 367. See, also, under (1) 38 Cyc. 4; (2, 5) 13 Cyc. 601; (3) 38 Cyc. 14; (4) 38 Cyc. 101, 112; (6) 13 Cyc. 604; (7) 11 Cyc. 1055. As to the control of apparent interest in construing a deed, see 31 Am. St. 26.