Opinion
December Term, 1838.
Covenant to Convey Land — Action by Heir.
In a covenant to make a conveyance of land "when called for" to one, without adding "and to his heirs," if the covenantee die without having called for the conveyance, the covenantor is either not bound to convey to any person, or, if to any person, to the heir; and in neither case can the administrator of the covenantee maintain any action upon the covenant.
(494) THIS was an action of covenant on an instrument executed by defendant, under seal, in the following terms:
Winston for the plaintiff.
J. H. Haughton for the defendant.
"I, Archibald McIntire, have sold to Jesse Thrower one tract of land, joining, etc., and containing, etc., which I bind myself to make a deed to Jesse Thrower for, when called for."
The plaintiff was the administrator of Jesse Thrower, and the breach alleged was that after the death of his intestate the plaintiff requested the defendant to execute a deed for the land in fee to certain persons, who were the heirs-at-law of the intestate, which he refused. The defendant pleaded covenants performed and covenants not broken, and upon the trial at Moore, on the last circuit, before his Honor, Judge Toomer, insisted that the plaintiff as administrator could not maintain this action because the covenant related to the realty, and no damage arose from the alleged breach to the personal estate of the intestate. A verdict was taken for the plaintiff upon an agreement that it should be set aside and a nonsuit entered if the court were of opinion that the administrator could not have this action. Of that opinion was the court, and gave judgment of nonsuit, from which the plaintiff appealed.
The opinion delivered by his Honor is, we believe, correct. Perhaps in the events which have happened no action at law by any person will lie, for if the covenant, by its silence as to the heirs, be for a conveyance to the covenantee personally, it is gone by his death. But we do not determine that question, because assuming the construction put on the agreement by the plaintiff to be correct, we are still of opinion against him. The legal effect imputed in the declaration to the instrument is that the defendant obliged himself to convey to Thrower, or to his heirs, upon their respective request, and no request having been made by Thrower the plaintiff alleges that the defendant refused to convey to the heirs when requested by them, after the death of the ancestor. (495) It is insisted on the part of the plaintiff that the heirs cannot have their action, because the covenant being merely an executory agreement, does not run with land and come with it to their heir, and also because the heirs is not named in the instrument and therefore cannot take benefit thereby, and it is thence inferred that the present action is sustainable, since it would be unreasonable that there should be no remedy for any person. But it may well be inquired if this agreement is by construction to be made to be an engagement to convey to the heirs of Thrower, as well as to Thrower himself, upon request, whether the same principle of construction does not make it, by implication, a covenant with the heir as well as with the ancestor, in which case, according to the old authority cited at the bar, F. N. B., 145, and Shep. Touch., 171, the heir and not the executor should have the action thereon. Be that, however, as it may, it is to be remembered that the ground of the damages demanded in this declaration is that the defendant has not conveyed to the heirs of the plaintiff's intestate. Now, the heir and administrator, as such, are strangers to each other in respect to this question, for what concern is it of the administrator whether the heir get the land or not? After the death of the intestate the defendant was either not bound to convey to any person, or, if to any person, to the heir. If the latter, and he has failed to do so, who is injured? Clearly, not the administrator; and therefore the administrator can have no action on the covenant. Every plaintiff in an action on this instrument, whether the heir or the administrator, must show a damage to himself before he can recover. Kingdon v. Nottle, 1 Maul. and Selw., 355; Chamberlain v. Williamson, 2 Maul. and Selw., 408; Markland v. Crump, 1 Dev. and Bat., 94.
PER CURIAM. Judgment affirmed.
Cited: Rutherford v. Green, 37 N.C. 126; Mills v. Abrams, 41 N.C. 460.
(496)