
    Israel T. Potter, Plaintiff and Appellant, v. Ziba H. Kitchen, Defendant and Respondent.
    1. In an action for a breach of the covenant of seisin in a conveyance of land, where the breach was assigned in the complaint by negativing the words of the covenant, and the answer averred the contrary, (viz., that the defendant was, at, &c., the true and lawful ownerj &c.,) in the exact words of the covenant: Held, that the defendant held the affirmative of the issue and the burden of proof, and must prove his title. Accordingly, where, upon tlie trial of such an issue, neither party offers any evidence, the plaintiff is entitled to judgment.
    (Before Hoffman, Slosson and Woodruff, J. J.)
    Heard November 9;
    decided, December 31, 1859.
    
      Appeal from a judgment rendered for the defendant on the decision of a Referee.
    The action is for the recovery of damages for the alleged breach of the covenants in a deed from the defendant to the plaintiff, purporting to convey certain land in the State of Illinois, (the N. W. qr. sec. No. 13, town. 8, south, range 3, west of the fourth principal meridian in the Military Bounty Tract,) “being the same tract of land as conveyed by Abel Thompson to Moses Ward by deed,” dated, &c., “ and by Moses Ward conveyed to the said Ziba H. Kitchen," (the defendant,) by deed dated, &c.
    The covenants were as follows:
    “And the said Ziba H. Kitchen doth, for himself, his heirs, executors and administrators, covenant and grant to and with the party of the second part, his heirs and assigns, that he, the said Ziba H. Kitchen, now is the true, lawful and right owner of all and singular the above described land and premises, and of every part and parcel thereof, with the appurtenances thereunto belonging ; and that the said land and premises, or any part thereof, at the time of the sealing and delivery of these presents, are not incumbered by any mortgage, judgment or limitation, or by any incumbrance whatsoever by which the title of the said party of the second part, hereby made or intended to be made for the above described land and premises, can or may be changed, charged, altered or defeated in any way whatsoever. And also that the said party of the first part now hath good right, full power, and lawful authority, to grant, bargain, sell and convey the said land and premises in manner aforesaid.”
    The complaint set forth the deed and covenants, and alleged the breach of the covenant in the following terms, viz.:
    “ That the defendant has not kept his covenants aforesaid in said indenture contained, but has broken them in this, that the defendant, neither at the time of sealing and delivering said indenture, was or has been the true, lawful or right owner of all or of any part of the said described lands and premises, or of the appurtenances thereunto belonging, and that the said defendant, at the time aforesaid, had not good right, full power or lawful authority to grant, bargain, sell or convey the said land and premises in manner aforesaid, or in any manner, but, on the contrary thereof, the title to said land and premises, at the said time of the sealing and delivery of said indenture, was in some person or persons other than the said defendant, and who had not conveyed the same to the said Abel Thompson, from whom the defendant, in and by his said indenture, professed to have derived title to said land and premises.
    “ Wherefore,” &c.
    The defendant, by his answer to the complaint,
    “Denies that he has broken or failed to keep any covenant therein contained, and he states that he was, at the time of the making and delivery of said deed, the true and lawful owner of said premises therein described, and of every part thereof, and had good right, full power, and lawful authority, to grant and convey the same, and he denies that the title to said premises or any part thereof was, at the time of his making said deed, in any- other person or persons, as untruly stated in said complaint.”
    The cause was referred to Charles A. Peabody, Esq., and was tried on the 23d of May, 1859. The plaintiff produced and read the deed mentioned in the complaint, containing the covenants above stated.
    The defendant offered no evidence; and the Referee thereupon rendered and reported his finding and decision,
    “ That the plaintiff has not proved the allegations in his complaint to the effect that the defendant, at the time of sealing and delivery of the deed therein mentioned, was not the owner of the land and premises in said complaint mentioned, and had not full power and authority to grant the same.
    “And, as a conclusion of law, he finds and reports that the plaintiff is not entitled to the relief demanded in his complaint, and that the defendant is entitled to judgment that the complaint herein be dismissed and to recover his costs of this suit.”
    From the judgment for the defendant entered upon this decision the plaintiff appealed to the General Term.
    
      & W. Chester, for plaintiff, (appellant.)
    I. In the very nature of the issue, the onus is on the party averring the ownership, right, or seizin. In conveying he professes to have title, and, of course, can show it. The negative is impossible of proof to the plaintiff. He has no means of ascertaining the title. The defendant must be supposed to know his own title, and it belongs to him to establish it.
    If the onus were on the plaintiff, it would not suffice to prove that A B had a deed to the property: he must prove a perfect title in A B. That is, he must prove an affirmation inconsistent with the affirmative averment of the defendant.
    IT. It is well settled that, in declaring in an action upon such covenants, the plaintiff has nothing more to do than to negative the words of the covenant. The defendant, in answer, affirms them. If it were incumbent on the plaintiff to prove an ownership or seizin in some other person, or an eviction, then it would be necessary, as a matter of course, to aver this in his pleading. The contrary has been decided, on motion, by one of the Justices of this Court in this case, and has been settled law for hundreds of years. (Stevens N. P., 1083; Bradshaw's Case, 9 Co., 60 [b] ; Jenk. Cent., 305, Case 79; Abbott v. Allen, 14 John., 248.)
    The Court to be sure add, “ It must be understood that we decide the question of pleading only, without expressing a definite opinion as to the evidence which may be requisite to maintain the defendant’s plea of seizin, &c. There may, perhaps, be ground for a solid distinction between a case where the covenant of seizin is accompanied by a transfer of actual possession, and a case where the premises are, in fact, vacant.’’
    That is, the question of pleading is the question presented for the Court’s decision. The onus prbbandi is necessarily involved in this, and the decision that the affirmative of the issue must be taken by the defendant results from the onus probandi being, in the nature of the case, upon him. But the Court do not undertake to say how much or what kind of proof it is necessary for the defendants to produce to maintain their plea. In some of the States it had been held that a seizin in fact was sufficient to remove the onus. It has been since settled in this State that a seizin in law is demanded by the covenant of seizin. (4 Kent’s Com., 479, marg. paging; Rickert v. Snyder, 9 Wend., 420; Hamilton v. Wilson, 4 Johns., 72; Morris v. Phelps, 5 Johns., 49, 54; McCarty v. Leggett, 3 Hill, 134; Bingham v. Weiderwax, 1 Comst., 509.)
    The case of Kennedy v. Newman, (1 Sandf. S. C. R., 187,) has been referred to by the Referee as sustaining his decision. It has no such effect or remote tendency. The only question raised was as to what proof was necessary to establish a legal sale. There does not appear to have been any issue upon the covenant of seizin—no issue except as to the legality of the sale.
    III. The Referee having erred on the law of the case, the plaintiff is entitled to have the decision set aside and judgment entered in his favor, or to have a new trial.
    
      Q. T. Jenks, for defendant, (respondent.)
    I. The burden of proof was on the plaintiff. (Rawle on Cov., pp. 87, 88; Grreenl. Ev., vol. 2, § § 236, 241; Kennedy v. Newman, 1 Sandf., 187.)
    In the case Abbott v. Allen, (14 Johns., 247,) (relied upon by plaintiff to show that the defendant held the affirmative of the issue.) the Court expressly say, in the last paragraph of the opinion, that they “ decide the question of pleading only,” and even on the question of pleading the case of Tallmadge v. Wallis, (25 Wend., 107, in the Court of Errors,) holds the opposite.
    In the present action, the breach is alleged both in the affirmative and in the negative, and the defendant, not the plaintiff, holds the negative of the issue to be tried.
    The complaint sets forth the covenant and assigns the breach by negativing the words of the covenant, and then continues: “but on the contrary thereof We title to said lands and premises at the said time, &c., was in some person or persons, &c., who had not conveyed the same to the said Abel Thompson, from whom,” &c.
    That part of the breach, then, which the defendant could traverse was the outstanding title affirmed by the plaintiff. This was traversed in the answer and put the affirmative of the issue, and the burden of proof on the plaintiff. (Findlay’s Archbold’s Nisi Prius, vol. 1, p. 370, marg. paging, and cases cited; 1 Greenl. Ev., § 74.)
    II. The rule contended for, imposing the onusprobandi in this case upon the defendant is, as respects the issue to be tried, admitted to be exceptional; and is urged upon the supposition that the grantor best knows of the title and can the most easily prove it.
    However the fact may have been previously to the recording acts in England and in this State, it is certain that under the .present laws affecting conveyances, the presumption now is, that the grantee’s facilities for ascertaining and proving any defect in the title are at least equal to those of the grantor, and that he possesses as much knowledge concerning it.
    Again, the grantee (plaintiff) must set forth the facts constituting his cause of action, and to do so he must know them. So in this case, the plaintiff Potter states, as a fact in his complaint, that the defendant was not seised, but that some other person not mentioned held the title, and this he swears to. So that it follows, that of the matter in issue, the plaintiff has as much, to say the least, knowledge as the defendant, and is able to prove the precise fact in controversy, the existence of which he has verified.
    It is believed that no case in this State has yet held that the burden is on the defendant in an action on the covenant of seizin, and there would seem to be no good reason why a man who gives a deed of a piece of property with the usual covenants should, by that act alone, expose himself to be brought into Court at any moment after the delivery of the deed, and there be compelled, without notice of the particular defect complained of, to furnish a complete abstract to the satisfaction of the Court. If this were so, in most cases of the sale of valuable property by a responsible grantor, it would be-worth the while of his grantee, even at the expense of the costs of suit, to obtain not only a perfect abstract of title, but a judicial decision upon the validity of his title, without the labor and expense attendant upon the examination of the title usually had at the time of purchase. "•
    The judgment should be affirmed, with costs.
   By the Court—Slosson, J.

The simple and only question presented by this appeal is, whether the plaintiff was bound, on these pleadings, to prove affirmatively want of title in the defendant, his grantor, or whether the affirmative of the issue was not with the defendant, to show title in himself at the time of the grant; in other words, on which party the burden of proof as to title rested.

The cause of action, is the breach by the defendant of his covenant of seizin, and the form adopted in this complaint of stating that cause of action, by alleging the breach in the words of the covenant itself, is all that would have been required under the old system of pleading.

So also the answer, in affirming title in the defendant in the words of the covenant, would have been a perfect plea in bar under the former system, and to this plea a replication reaffirming the allegation of want of title in the defendant, in the language of the complaint, without setting out in whom the title in fact was vested, would have been good. (Abbott v. Allen, 14 J. R., 248.)

Since the Code, every complaint must contain a statement of the facts constituting the cause of action. Whether an allegation of want of title in the defendant is an averment of a fact or of a conclusion of law, I will not stop to inquire; since the objection to the sufficiency of the complaint was neither taken by demurrer nor on the trial. Had such an objection been taken it might have presented, perhaps, a question of some difficulty. (Laurence v. Wright, 2 Duer, 673; Schenck v. Naylor, id., 675.)

The parties having gone to trial on these pleadings, the question is, with whom is the affirmative of the issue? The defendant contends that even if it be conceded that on a simple negation of seizin on one side, and affirmance of it on the other, in the language of the covenant, the affirmative would be with the defendant who asserts the title; yet the plaintiff in the present instance not having contented himself with such a simple statement of his cause of action, but having affirmatively alleged that the title “ was in some person other than the defendant,” and who had not conveyed the same to the party through whom, by the recitals in the deed, the defendant professes to have derived his title, is bound to show affirmatively the truth of his allegation.

If, without this allegation, the plaintiff would not have been obliged, in the first instance, to have proved title in some person other than the defendant, does the allegation throw that burden on him ?

I think the defendant is mistaken in his construction of this sentence. It is to be observed that it immediately follows the words in which the plaintiff negatives the language of the covenant, "and is prefaced with the expression, “but on the contrary thereof,” &c. We think that, in truth, it forms part of the general averment in which title is denied to be in the defendant, and was manifestly intended by the pleader to assert such want of title, in the double form of an assertion of a proposition and a denial of the contrary of it. The complaint was perfect without it, (or must, on this appeal, be assumed to be so;) and I do not think is hurt by it. If it had asserted in whom the title was, the consequences might have been different; but as it is, it is in reality but a denial of title in the defendant, and nothing more. Besides, all the reasons which, in this peculiar action, would throw the burden of proof on the defendant are as applicable, with this allegation in the complaint, as they would have been if it had no place in that pleading. If, by reason of it, the burden of proof was on the plaintiff, he would be obliged to prove an absolute title in some other party; whereas, as all the cases hold, he is not presumed to know the exact condition of the title of his grantor. This is the reason given in the books why the burden of proof is on the defendant. He has purchased in reliance upon the covenant of title; and when that is impeached or denied, the grantor is bound to assert and maintain it. In the language of the case in 14 Johnson’s Reports, “it is enough if he suspects the grantor’s title to be defective. He is not bound to wait in suspense until by possibility he can find out in whom the title really is.” If the defendant had no title when he made his conveyance, the covenant was broken the moment it was made, and for this reason, all that the plaintiff need allege is simply a breach of the covenant, by negativing the words of it. A breach of the other covenants can only be shown by matters occurring after they are made; and, hence, it is necessary to allege and prove such subsequent matters. The case of a breach of the covenant of seizin and the right to convey is, in respect to the order of proof, strictly exceptional.

I think the case of Abbott v. Alien, above cited, conclusive on this question; and to the same effect are numerous other authorities. The case of Marston v. Hobbs, (2 Mass., 433,) asserts the same thing. The rule is laid down in Bradshaw's case, (9 Coke’s R., 60,) and has been fully recognized by our own decisions; nor has any distinction been made between the case of a covenant of seizin in alease, which was Bradshaw's case, and that of a covenant in a deed in fee. Of both it is true that it lies more in the knowledge of the grantor what estate he hath than in that of the grantee.

In Abbott v. Allen, the breach was assigned generally in the words of the covenant—the conveyance being in "fee. The plea was that the defendant was lawfully seised, &c., in the words of the covenant, and the replication was, that the defendant was not seised, &c.; still following the words of the covenant, and repeating the allegation of the breach as laid in the complaint. The defendant demurred to the replication on the ground that it did not show in whom the title was, whereby the defendant was not seised, &c. The very point, therefore, which party was to allege, and consequently prove, the actual title, was involved, and the Court held the demurrer ill taken, and gave judgment for the plaintiff; and it seems, by a note at the foot of the case as reported, that they also gave judgment in the same manner, on the same question, in another case, not reported. (Sebeer v. Kimball.)

In Glinister v. Audley, (Sir Thos. Raymond’s R., 14,) on a demurrer to a similar replication, (the conveyance being in fee,) the point relied on was, that “ the plaintiff ought to have shown of what estate the defendant was seised, in regard he had departed with all his writings concerning the land, in presumption of law, and therefore the plaintiff well knew the titleand it was contended that it was not like Bradshaw's case, “ because there the covenant was with the lessee for years, who had not the writings;” but it was held .that the breach was well assigned according to the words of the covenant, and judgment was given for the plaintiff.

The case of Salman v. Bradshaw, (Cro. Jac., 804,) was on breach of covenant in a lease, the covenant being that the lessee had lawful estate to let for the term, the assignment of the breach was general in the words of the covenant, and held good.

In Abbott v. Allen, the language of the Court is unqualified. The grantor, giving such a covenant, is not bound to deliver to his grantee the prior deeds and evidences of his title. The legal presumption is that he retains them. The grantee relies on the covenant of the grantor that he has a good title, “ and until the grantor discloses his title, he (the grantee) holds the negative merely, and is not bound to aver or prove any fact in regard to an outstanding title. Prima fade the grantee is to be presumed ignorant of the real state of the title. The grantor is not bound unless by suit to explain his title.”

The whole subject is reviewed in a learned note (10) in 2d Saunders’ Reports, 181, a., and the distinction between this and the other covenants in a deed pointed out, and the cases cited.

The case of Tallmadge v. Wallis, (25 Wend., 107,) is not in conflict with Abbott v. Allen. ' The only question in that case was whether a plea of want of seizin in the grantor was a good defense to an action on the bond for the purchase money, and it was held that it was not because such a plea did not show a total want of consideration, and therefore as a plea in bar was defective. Had it shown that the defendant had been evicted, or that the grantor, the plaintiff, had no estate in the premises, or that some other person had the entire estate, it would have gone to the whole consideration; but the plaintiff may have had no legal seizin in fee, and yet have had a title by occupancy, which passed under the deed, and thus furnished some consideration for the bond. The case arose on a demurrer to this ‘plea.

To the same effect is Whitney v. Lewis. (21 Wend., 131.)

The case of Kennedy v. Newman, (1 Sandf. Sup. C. R., 187,) is relied upon by the. defendant as showing that the affirmative of proof is with the plaintiff in this action. We are unable to perceive this. The suit was evidently on the covenant against incumbrances, and the incumbrance set up in the complaint and attempted to be proved, was a lien acquired by a purchaser at an assessment sale before the conveyance to the plaintiff, and which the plaintiff had bought off, and the Court held that the plaintiff had failed to establish all that was necessary to show a valid assessment, and a nonsuit was directed. The head note would seem to indicate that the action was on the covenant of seisin; but if it were, the question of who had the affirmative of the issue, could not have arisen, since the plaintiff set out the assessment sale and his settlement with the purchaser in his complaint, and the defendant pleaded no such assessment. Hnder such a state of pleadings, the burden of proof was necessarily on the plaintiff.

We think the Referee erred in his conclusions, and that there should be a new trial, costs to abide the event.

Judgment reversed, and new trial ordered accordingly.  