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62 Mich. 369

Guerin v. Smith

Michigan Supreme Court

Decided July 8, 1886

Michigan Supreme Court · decided 1886-07-08

<p>Statute of limitations — Bars suit for breach of covenant against incumbrances in six years after right of action accrues — Such covenant does ■ not run with the land, — And such right of action will not pass by covenantee’s deed— Unless by special assignment thereof — Sale of land under regular foi'eclosure of existing mortgage after conveyance by mortgagor— And repurchase by his grantee after expiration of redemption year— Creates a constructive eviction — And will sustain action by such grantee for breach of covenant of warranty in his deed.</p> <p>February 5, 1874, defendant mortgaged a lot in the city of Port Huron for fifteen hundred dollars, the last installment maturing February 5, 1877.</p> <p>October 14, 1874, he conveyed the mortgaged premises to plaintiff’s grantor, both deeds containing the usual covenants of seizin and against incumbrances, and to Warrant and defend against all lawful claims. The mortgage was afterwards regularly foreclosed by advertisement, the redemption year expiring July IS, 1878, and on August 19, 1881, plaintiff purchased the land for the amount due on the mortgage and interest, and on May 24, 1883, commenced this suit, averring in her declaration the aforesaid facts.</p> <p>Held, that the right of action on the covenant against incumbrances was barred by the statute of limitations, more than six years having elapsed after it accrued before suit was commenced.</p> <p>Held, further, that inasmuch as the deed from the convenantee to the plaintiff made no reference to his right of action for breach of the covenant against incu mbrances, which had then accrued, and such right of action not having been assigned to plaintiff, and not running with the land, she could not recover thereon.</p> <p>Held, further, that plaintiff, having set up a constructive eviction, which would be a breach of the covenant of warranty, had a right to have the case laid before the jury under that branch of her case.</p>

Cited by 4 later decisions — most recently May 1935

4 state decisions

Relies on Davenport v. Estate of Davenport

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1886-07-08

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Campbell, C. J.

¶1This was an action of assumpsit, containing one count upon a covenant and the common counts. *372The count on covenant set out a deed from defendant to Daniel J. Guerin, plaintiff’s grantor, and the deed' from Daniel to plaintiff. Defendant was alleged to have covenanted against incumbrances and grants, and that he would warrant and defend against all lawful claims. The count then sets out an outstanding mortgage, which was foreclosed and that subsequently plaintiff received a reconveyance from the purchaser on the sale, on payment of the price and inter est.

¶2The case seems to have been tried below on the understanding all round that it was a suit arising under the covenant against incumbrances, and on that theory the court below decided very justly that it was barred, because not sued on within six years. This has been frequently decided in this Court, and it has also been decided that such a cause of action does not pass with the land. Davenport v. Davenport, 52 Mich. 587.

¶3It is now claimed by plaintiff that the special count set up a constructive eviction, which would be a breach of the covenant of warranty. Upon the hearing we were of the impression that this point was not in the case, and was not raised below; but, on looking at the whole record, we discover that a regular foreclosure sale was made out, and a purchase by plaintiff within six years of the adverse foreclosure title, and tenancy under it, and that the computation of damages is consistent with that claim. As the court below took the case from the jury, we do not think we are authorized to say the point was not in the case. It would be a hardship to deprive plaintiff of a legal right on the doubt whether it had been abandoned. While we are greatly inclined to think this point was not so presented below as to call the judge’s attention to it, we must go by the record. Plaintiff, so far as we can see, had a right to have the case laid before the jury under the covenant of warranty. We are therefore compelled to reverse the judgment and grant a new trial, but we are disposed to treat it as a mistrial rather than direct error, and shall give no costs of reversal.

The other-Justices concurred.
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