ERROR to the circuit court for the district of Kentucky.
The capias ad respondendum issued in this case was as follows: 'The United States of America to the marshal of the Kentucky district, Greeting. You are hereby commanded to take John Craig, Robert Johnson, and Elijah Craig, if they be found within your bailiwick, and them safely keep so that you have their bodies before the judge of our district court, at the capitol in Frankfort, on the first Monday in March next, to answer William Duvall, a citizen of the state of Virginia, of an action of covenant; damages fifty thousand dollars; and have then and there this writ. In testimony whereof, Harry Innes, Esq. judge of our said court, hath caused the seal thereof to be hereunto affixed this 22d day of January, 1804, and of our independence the 28th. Thomas Turnstall, C. D. C.'
Whereupon the plaintiff declared against John Craig, Robert Johnson, and Elijah Craig, in covenant, for that whereas, on the 28th day of February, 1795, &c. the said John, and the said Robert and Elijah, as trustees to the said John, by their certain indenture of bargain and sale, &c., did grant, bargain, sell, alien, and confirm unto the said plaintiff, by the name of William Duvall, of the city of Richmond and state of Virginia, his heirs and assigns for ever, a certain tract of land lying and being in the state of Kentucky, &c., together with the improvements, water courses, profits, and appurtenances whatsoever, belonging, or in any wise appertaining; and the reversion and remainder, and remainders and profits, thereof; and all the estate, right, title, property, and demand of them, the said John Craig, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, of, in, and to the same, to have and to hold the lands thereby conveyed with all and singular the premises, and every part and parcel thereof to the said William Duvall, his heirs and assigns for ever, to the only proper use and behoof of him, the said William, his heirs and assigns for ever; and the said John Craig, and Robert Johnson, and Elijah Craig, trustees to the said John Craig, for themselves, their heirs, executors, and administrators, did covenant, promise, and agree, to and with the said William Duvall, his heirs and assigns, that the premises before mentioned, then were, and for ever after should be, free of and from all former and other gifts, bargains, sales, dower, right and title of dower, judgments, executions, titles, troubles, charges, and incumbrances whatsoever done, or suffered to be done by them, the said John Craig, and Sarah his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, as by the said indenture will more at large appear. And the said William, in fact, saith, that the premises before mentioned were not, then and there, free of and from all former gifts, grants, bargains, sales, titles, troubles, charges, and incumbrances whatsoever done and suffered to be done by the said John Craig, and Sarah his wife, and Robert Johnson and Elijah Craig, trustees to the said John Craig. But, on the contrary, the said John Craig and Robert Johnson, theretofore, to wit, on the 11th day of May, 1785, assigned the place and certificate of survey of said land to a certain John Hawkins Craig, by virtue of which said assignment, Patrick Henry, governor of the commonwealth of Virginia, granted the said land to said John Hawkins Craig, and his heirs for ever, by letters patent, dated the 16th day of September, 1785, and now here shown to the court, the date whereof is the day and year aforesaid, which said patent to the said John Hawkins Craig, on the day and year first aforesaid, at the district aforesaid, was in full force and virtue, contrary to the covenant aforesaid, by reason of which said assignment, patent, and incumbrance, the said William hath been prevented from having and enjoying all or any part of the premises above mentioned. And thereupon the said William further saith, that the defendants aforesaid although often requested, have not kept and performed their covenant aforesaid, &c. To which declaration there was a general demurrer, and joinder in demurrer, and a judgment thereupon in the circuit court for the defendants.
The indenture referred to in the plaintiff's declaration is in the following words: 'This indenture, made this 28th day of February, 1795, between John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig, all of the state of Kentucky, of the one part, and William Duvall of the city of Richmond, and state of Virginia, of the other part, witnesseth, that the said John Craig, for and in consideration of the sum of two thousand pounds, current money of Kentucky, to him, the said John Craig, in hand paid, the receipt whereof they do hereby acknowledge and for ever acquit and discharge the said William Duvall, his heirs, executors, and administrators, have granted, bargained and sold, aliened and confirmed, and by these presents do grant, bargain and sell, alien and confirm, unto the said William Duvall, his heirs and assigns for ever, a certain tract of land lying and being in the state of Kentucky, and now county of Scott, formerly Fayette, on the waters of the Ohio river, below the Big Bone lick creek, it being the same lands that the said John Craig covenanted by a writing obligatory, sealed with his seal, and dated the second day of December, 1788, to convey to Samuel McCraw, of the city of Richmond, and which said writing the said Samuel McCraw, on the back thereof, endorsed and transferred the same on the 27th day of February, 1789, to William Reynolds, and which is bounded as follows: beginning at a poplar and small ash corner, to William Bledsoe, about thirty miles nearly a south course from the mouth of Licking; thence S. 15, E. 520 poles with the said Bledsoe's line, crossing four branches to an ash and beech; thence S. 75, W. 150 poles, to a hickory and beech; thence S. 15, E. 400 poles, crossing a branch to a sugar tree and beech, near a branch; thence S. 75. W. 87 poles, to three beeches, corner to Robert Sanders; thence with his line S. 15 E. 600 poles, crossing two branches to a poplar and sugar tree; thence S. 60 poles to a sugar tree and beech; thence west 2174 poles, crossing five branches to a large black walnut; thence north 1580 poles, crossing a large creek and four branches to a sugar tree and ash; thence E. 2006 poles, crossing five branches to the beginning; containing twenty thousand four hundred and forty acres, together with the improvements, water-courses, profits and appurtenances whatsoever to the same belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, and profits thereof, and all the estate, right, title, property, and demand, of them, the said John Craig, and Sarah, his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, of, in, and to the same, to have and to hold the land hereby conveyed, with all and singular the premises and every part and parcel thereof, to the said William Duvall, his heirs and assigns for ever, to the only proper use and behoof of him, the said William Duvall, his heirs and assigns for ever. And the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees to the said John Craig, for themselves, their heirs, executors, and administrators, do covenant, promise, and agree, to and with the said William Duvall, his heirs and assigns, by these presents, that the premises before mentioned now are, and for ever after shall be, free of and from all former and other gifts, grants, bargains, sales, dower, right, and titles of dower, judgments, executions, title, troubles, charges, and incumbrances whatsoever done, or suffered to be done, by the said John Craig, and Sarah, his wife, and Robert Johnson and Elijah Craig, trustees for the said John Craig. And the said John Craig, and Sarah, his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, and their heirs, all and singular the premises hereby bargained and sold, with the appurtenances, unto the said William Duvall, his heirs and assigns, against him the said John Craig, and Sarah, his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, and their heirs, and all and every persons whatsoever, do and will warrant and for ever defend with this warranty, and no other, to wit, that if the said land, or any part thereof, shall at any time be taken by a prior legal claim, or claims, that then and in such case they, the said John Craig, and Sarah, his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, and their heirs, shall make good to the said William Duvall and his heirs, such part or parts so lost, by supplying to his the said William Duvall's use, other lands in fee of equal quantity and quality, to be adjudged of by two or more honest, judicious, impartial men, mutually chosen by the parties for ascertaining the same. In witness whereof the said John Craig, and Sarah, his wife, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, have hereunto set their hands and seals, the date first in this indenture written.
JOHN CRAIG. (L. S.)
SARAH CRAIG. (L. S.)
ROBERT JOHNSON,
Trustee for John Craig. (L. S.)
ELIJAH CRAIG.
Trustee for John Craig. (L. S.)
Signed, sealed, and delivered in presence of
Charles W. Byrd.
T. S. Threshly.
Thomas Corneal.
Christopher Greenup.
Robert Saunders.
James Taylor.
Jos. Wiggleworth.
George Christy.'
Feb. 8th.
Mr. B. Hardin, for the plaintiff, made the following points: 1. That the variance between the writ and declaration, as to the description of the parties, was immaterial. Naming two of the defendants as trustees, is only descriptio personae, and could not alter the nature of the covenant. 2. Judgment was rightly rendered against the defendants in their individual capacity. 3. It was unnecessary to aver a demand and refusal of other lands of equivalent value as an indemnity, this covenant not being sued upon; and the action might be maintained upon the first covenant against incumbrances by the parties to the deed. 4. That the breach alleged in the declaration was sufficient. 5. That it was unnecessary to make profert of the assignment described in the breach.
Mr. Talbot, contra. 1. The variance between the writ and declaration is a substantial variance, and is therefore available on general demurrer. The parties, Robert Johnson, and Elijah Craig, are not sued in their fiduciary character; but they are declared against as trustees to the said John, who is the cestui que trust, and could not be joined in an action at law with the trustees. They covenanted as trustees, and a court of equity is the proper forum in which they ought to be sued. 2. Having covenanted as trustees, no individual judgment could be rendered against them. 3. Supposing the trustees to be liable in their individual capacity, the two covenants in the deed are to be construed in connexion; the clause as to an indemnity with other lands of an equivalent value, ought to be applied to both; and the declaration is fatally defective in not alleging a demand and refusal to indemnify with other lands. 4. The covenant, on which the breach is assigned, is against the joint and not the several incumbrances of the parties to the deed. The incumbrance alleged is the act of two of the parties only. 5. There is no profert of the assignment to John Hawkins Craig, by which the incumbrance was created; nor is it shown to have been made for a valuable consideration. 6. There is no averment of an eviction of the plaintiff under the assignment, which was absolutely necessary to sustain the action on the covenant against incumbrances.
Mr. M. B. Hardin, in reply. 1. The variance between the writ and declaration could only be taken advantage of by a plea in abatement. 2. As between a trustee and the cestui que trust a court of chancery is the only jurisdiction; but trustees may bind themselves individually so as to be amenable at law. The present case is not that of a covenant binding the trustees, only as to the trust fund in their hands; but they covenant for themselves, their heirs, executors, &c. The mere description as trustees, therefore, becomes immaterial. 3. The covenants are independent, and the action may be maintained to recover pecuniary damages, without alleging an eviction and demand of other lands of equivalent value. 4. Where there is any doubt, a covenant is to be construed most strongly against the covenanters; and in a case of this nature, the law considers an act done by one or more of the covenanters as a breach of the covenant. 5. No profert of the assignment was necessary, because the action was not founded upon it, nor was the plaintiff a party or privy to it; and the omission of profert was ground of special demurrer only.
March 1st.
Mr. Justice STORY delivered the opinion of the court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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