
    Simeon Hovey v. Larned Smith.
    
      Deed: Evidence: Breach of covenant: VaHance: Description.. In an action for a breach of covenant contained in a deed for the conveyance of land, alleged in the declaration to be made by the defendant, in which “ the said defendant did covenant, grant, bargain and agree for themselves and their heirs''' that they were well seized,” etc., a deed executed by the defendant and his wife, — it appearing that the land was not the individual property of the wife, — is admissible; and this, notwithstanding the covenant of seizin is stated in the plural.
    Nor is it any objection to the admission of a deed as evidence in such an action, that the description of the premises is not in the same words as laid in the declaration. The identity of the premises may be shown by other evidence.
    
      JRecord in ejectment, evidence in covenant: Journal entries: Privies. Where a defendant in an action for breach of covenant contained in a deed for the conveyance of land, has had reasonable notice of the pendency of an ejectment suit for the same premises, against a party to whom the plaintiff had conveyed the title derived from the defendant, and has also had an opportunity to defend it, the judgment for the plaintiff in the ejectment suit will be prima fade evidence of the want of title in the defendant, and of the breach of his contract; and this judgment may be shown by the journal entries and files.
    
      Heard October 21, 1870.
    
    
      Decided January 4.
    Case made from St. Clair Circuit.
    This is an action of covenant brought by Simeon Hovey in the Circuit Court for the County of St. Clair against Earned Smith. The declaration sets forth the making of a deed by the defendant to the plaintiff, and the covenant and breach thereof as follows:
    “And the said defendant, in said indenture, did covenant, grant, bargain and agree, for themselves and their heirs, to and with the said Simeon Hovey, party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents, above mentioned, they were well seized of the premises therein mentioned, as of a good, sure, perfect, absolute and indefeasible estate of inheritance in the law, in fee simple, subject to the right of dower of one Mrs. Brown (formerly Mrs. McQueen), when in truth, and in fact, the said plaintiff avers, that the said defendant did not have good right, full power, and lawful authority to so covenant, grant, bargain and agree, to and with the said plaintiff. And the said defendant was not well seized of the premises mentioned in said indenture, as of a good, sure, perfect, absolute and indefeasible inheritance in the law, in fee simple, excepting said right of dower, aforesaid excepted and reserved, contrary to the covenant aforesaid of the said defendant, and against the true intent and meaning of the said indenture.”
    The defendant pleaded the general issue, and the cause was tried before the circuit judge without a jury. A judgment having been rendered in favor of the plaintiff, the record comes into this court by “case made” under the statute.
    
      T. O. Owen and R. P. Eldridge, for plaintiff.
    
      Mitchell é Farrand and J. Atkinson, for defendant.
   Christiancy, J.

This was an action of covenant, brought upon the covenant of seizin and good title, contained in a deed of conveyance of land, and comes before us upon a case made. The facts are neither agreed upon by the parties nor found by the court. There was no special finding of facts or law, and no request for any. But certain exceptions were taken upon the admission of evidence, and the questions arising upon these are all the questions we can consider in the case.

There was no error in admitting the deed claimed to contain the. covenant declared upon. The objection was that it was inadmissible under the declaration; and this objection is sought to be sustained on two grounds: 1st, that the deed appears to have been executed by different parties, or by another party, besides the one described in the declaration; and 2d, that the description of the land which the deed purports to convey is different from that described in the declaration, as conveyed by it.

The deed offered was executed by the defendant and his wife to the plaintiffs. But it sufficiently appears from the evidence and circumstances of the case, that the land was not, nor any part of it, the individual property of the wife, and there is no claim or pretense that it was. The only reason for the wife joining in the deed was to release her contingent right of dower. Any covenant on her part would be simply void, and any in which she might join with her husband, would be void as to her, leaving it the sole covenant of the husband.

The declaration describes the deed as executed by the “ defendant, party of the first part.” But it does not assume to set out the deed in Imc verba nor to describe it by its tenor, but only according to its legal effect; and in legal effect it was a conveyance by the husband, and the covenant of seizin and good title upon which the action was brought was his sole covenant. We think, therefore, there was no material variance as to parties.

As to the description of the land, this declaration only purports to describe a part of the land described in the deed; and the covenant was alleged to be broken only as to part of the land. It alleges the conveyance to have been of “certain pieces or parcels of land situate in the township of China, St. Clair county, Michigan, among which was the following piece of land,” and then follows the description of eighteen acres by metes and bounds, a description, however, which does not, at least in words, compare with any particular piece of land as described in the deed; and this is the variance in the description to which objection is made.

Whether, in fact, the lands thus described in the declaration were included among the lands described in, and purporting to be conveyed by the deed, could only be ascertained from evidence outside of the deed. The declaration avers the affirmative, and we see no reason to doubt that it was a proper subject of proof. It was never necessary, either in ejectment, trespass or covenant, to describe the lands in the words used in the title deeds or any of them, unless the plaintiffs have undertaken to set out this part of the deed in Imc verba, or by its tenor. It was always matter of evidence outside of the deed to bring the land described in the declaration within the description contained in the deed.

These are the only grounds urged upon the argument against the admission of the deed. Another ground, however, might have been urged with more plausibility, and as the objection at the trial was broad enough to cover it, it is proper that we should notice it here.

The covenant, as already noticed, was in form plural, applying to the wife as well as the husband, and yet it was in law the covenant of the husband alone. But this covenant also was in form, “that they were well seized of the premises above described as of a good, absolute and indefeasible estate of inheritance in the law, in fee simple.” And, though the declaration properly sets this out as the covenant of the defendant alone, yet it states the seizin covenanted for, as in the deed, “that they were well seized,” etc. The declaration does not mention the wife at. all or any other person as executing this deed with the defendant; and, upon the face of the declaration alone, it might be impossible to know the meaning of the covenant as to who were seized; and it might well be doubted, therefore, whether it states any cause of action without some averment of what party or parties were by the covenant represented to be seized. The declaration would have been clearly bad upon demurrer, and perhaps a judgment by default might have been reversed on error. But not having been demurred to, and the. case having been tried upon the facts, the point is now to be considered as it would be after verdict. And there being no verbal variance in this respect between the covenant set out in the declaration and that contained in the deed, the declaration must be hold sufficient, if this uncertainty can fairly be considered as removed, and the declaration made certain by the evidence, at least if the evidence contained in the record fairly shows that the averment that the covenant was that “they were seized,” etc., was intended as an averment of a covenant for defendants’ seizin, and that such also was the meaning and legal effect of the covenant found in the deed; or, in other words, that “they,” in the covenant declared upon and in the declaration stating that covenant, was a mere clerical error for “he,” (the defendant), and that the covenant was in legal effect intended to be a covenant that defendant alone was seized; and such, we think, does sufficiently appear -from -the evidence and the circumstances already referred to, to have been the intention. And, in view of such facts and circumstances, we think it sufficiently obvious, that the error of form in covenanting that “they were,” instead of “he was” seized, etc., arose from using the form of the printed blanks for deeds which, from the great number of such deeds brought to our notice, I think we are bound to take judicial notice, has been for a long time generally in use in this state; which would seem to have been originally got up by some person having very little legal knowledge, and which, instead of leaving a blank for the insertion of the name of the husband at the beginning of the covenant (where the deed is to be executed by husband and wife), introduces the covenant in this form: “And the said part of the first part, for themselves, etc., do covenant,” etc., leaving the blank to be filled by adding “y” where but one party executes, and by “ies,” when to be executed by more than one, whether husband and wife or otherwise. And, of course, the pronouns and verbs subsequently occurring throughout the covenant will be in the plural whenever the word, “parties,” has thus been used at the beginning.

Such being the usual form of the printed blanks, any person not a lawyer would naturally use them without alteration, and would be likely to follow it even in a manuscript deed. And even lawyers, who recognize the error, too generally prefer filling the blanks as they find them, rather thau to take the trouble of striking out any part of the blank and inserting the name of the husband. This is erroneous, no doubt; but it is safe to say that a very large proportion, — and I think the majority of the deeds of conveyance executed by husband and wife in this state — are drawn in this way. The practice, at all events, is so general, that when this formal error is found in a deed executed by the wife merely to cut off her contingent right of dower, no court can have any reasonable doubt, that the intention of the parties is precisely the same, as if the whole covenant had been in so many words confined to the husband alone. And any course of decision which should adhere to the letter and refuse to recognize the real intention as above explained, would introduce great confusion and' uncertainty into the law of covenants in deeds of real estate here, and give an effect, not only to the covenant of seizin, but to all the other covenants in such deeds, very different from that intended by the parties.

We think, therefore, there was no error in the admission of the deed.

The defendant also excepted to the introduction of the several quit-claim deeds from Susan Clement, Samuel McQueen and Peter McQueen to John McQueen. But this is not urged by counsel for the defendant in this court, and could not well be urged; since, if their relevancy did not appear when offered, it was subsequently made to appear, when it was shown that Peter, Samuel and John McQueen and Susan Clement were the children and heirs of Daniel McQueen, the patentee (no objection being made to the mode in which the patent was proved), and the several conveyances of the other heirs to John tended to show that the title was in him, and, in this way, to disprove any title in defendant, and to show the breach of his covenant.

There was no error in the admission of the journal entries and files in the case of'John McQueen against ■Theobald Schenk, in ejectment, in which John McQueen had recovered from Schenk (to whom plaintiff had sold after his purchase from defendant), a part of the land.

This evidence was admissible and pertinent in connection with the evidence of plaintiff tending • to show that, while said suit was pending, and a week or two before the term of court at which judgment was rendered, said plaintiff had notified defendant about the suit, and that defendant had refused to have anything to do with defending it. The judgment in that suit would, as between the plaintiff and defendant in the present suit, be prima facie evidence of want of title in defendant and of breach of his covenant, if he had reasonable notice of the pendency of the suit and an opportunity of defending it.

The evidence of the plaintiff was such that the court might have found such reasonable notice and opportunity; and though the evidence of defendant had an opposite tendency, yet to have raised any questions upon the reasonableness of the notice, the defendant should have requested a special finding of facts and law and then excepted to the finding. It is for the want of such special finding and exceptions, that we. are also precluded from considering the question of damages, which, we suppose.from the argument, was the most important question upon which the defendant sought a review by this court.

We see no error upon any of the questions raised by the .exceptions, and the judgment must be affirmed with costs.

The other Justices concurred.  