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App. Div.] First Department, November, 1911. made, for their contract expressly obligated them “ to reduce sufficient building stone from the rock on the premises and leave sufficient thereon in such shapes and sizes as can be used for the foundations to be erected thereon.” Of course, if the plans called for work not usually and customarily incident to the work described in the contract, the plaintiffs would not be obligated to perform it, and on seeing the plans they would be at liberty to rescind the contract or perhaps to proceed with the work required by the contract. But these plans called for work incident to the main work described in the contract, and not of an unusual character. We are of opinion that the reference to the plans contained in the contract made them part of it, not merely as claimed by plaintiffs for the purpose of determining whether part of the rock on the plot within eight and a half feet of the surface was to be left unexcavated, but to show the incidental work required to be performed by plaintiffs as well. The contract should be construed, not as defining with precision the work to be done by the plaintiffs, but as descriptive merely, and the plans should be read in connection with it.

The only question which I regard as not free from doubt is whether the specification in the contract with respect to the depth of the excavation is controlling. If so, the plaintiffs could have been compelled to excavate to the depth of precisely eight and a half feet below the curb at every point. Manifestly that was not intended. The plans called for an excavation on the slant of the Longwood avenue curb along Longwood avenue to the depth of nine feet, extending over about one-half of the plot, and provided that the bottom of the other half of the plot should be level, and that about one-half of it should be seven and half feet below the curb of Beck street and the other half seven and a half feet below the curb of Kelly street. I am of opinion that the depth given in the contract should be regarded as an estimate, or approximate, only, to be read with the plans, and that the depth called for by the plans is not so materially greater as to entitle the plaintiffs to recover for the additional depth as for extra work, at least, not if the plaintiffs saw the plans before proceeding with the work, and then proceeded without objec

First Department, November, 1911.

[Vol. 146. tion, as the jury would have been warranted in finding. On this theory there would be no consideration for the agreement to pay

for this work as extra work claimed to have been made in May; and, moreover, if the jury found that the plaintiffs had a copy of the plans at the outset, they cculd not have found any agreement to pay for this work as extra work, for the only theory in support of such agreement is that the plaintiffs had not seen the plans until then. This was plainly the purpose of the requests, and I think they should have been granted.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellants to abide the event.

INGRAHAM, P. J., and DOWLING, J., concurred; SCOTT and MILLER, JJ., dissented.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.

KEYES AND MARSHALL BROTHERS REALTY COMPANY, Respond

ent, 1. TRUSTEES OF THE CANTON CHRISTIAN COLLEGE, Appellant.

First Department, November 3, 1911.

Real property covenant of warranty - covenant runs with lands –

breach by eviction - action against original covenantor action local not transitory - court - jurisdiction.

A covenant of warranty runs with the land and an eviction actual or con

structive by an elder title constitutes a breach. A cause of action accrues upon a breach of such covenant to a remote

grantee against the original covenantor. As such action for breach of warranty is based upon the privity of estate

rather than upon privity of contract, the action is local and must be

brought in the courts of the State where the land is situated. Hence, the courts of this State have no jurisdiction of an action against a

domestic corporation for breach of such warranty brought by a remote grantee where the lands are situated in a foreign State.

APPEAL by the defendant, the Trustees of the Canton Christian College, from an interlocutory judgment of the

App. Div.] First Department, November, 1911.

Supreme Court in favor of the plaintiff, entered in the office of · the clerk of the county of New York on the 23d day of June,

1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant's demurrer to the complaint in an action upon a covenant of warranty.

Mornay Williams, for the appellant.

John C. O'Conor, for the respondent.

CLARKE, J.:

Plaintiff is a Missouri corporation. Defendant is a domestic corporation. The complaint sets up an action for damages on breach of covenant of warranty, contained in a deed conveying lands situate in St. Louis, Mo., executed and delivered by defendant at the city of New York to plaintiff's predecessor in title. Plaintiff, a remote grantee through several mesne conveyances, sues defendant as original covenantor. The breach alleged is a judgment of eviction from a portion of the lands conveyed in a suit brought in the Circuit Court of the city of St. Louis, Mo., by the holder of an older and better title, of which suit defendant had notice.

The defendant demurred upon the ground that it appears on the face of the complaint that the court has no jurisdiction of the subject of the action because it appears on the face of the complaint that the action is for damages for alleged breach of warranty in a deed of real property lying wholly within another State, to wit, the State of Missouri, and also that the complaint does not state facts sufficient to constitute a cause of action. The Special Term overruled the demurrer upon the ground that the complaint stated facts sufficient to constitute a cause of action and from the interlocutory judgment entered thereon defendant appeals.

It is well established that a covenant of warranty runs with the land and that eviction, actual or constructive, by elder title constitutes a breach. A cause of action accrues upon the breach to a remote grantee against the original covenantor. The question presented is whether such cause of action is transitory or local. This depends upon the question whether the

First Department, November, 1911.

[Vol. 146.

cause of action is based upon privity of contract or privity of estate.

In Clarke v. Priest (21 App. Div. 174) WILLARD BARTLETT, J., said: “A covenant is said to run with the land when such covenant, given by a prior owner, inures to the benefit of the subsequent owners in the chain of title. Until breach, all covenants for title run with the land. Under the common-law doctrine of covenants, according to the weight of American authority *

the covenant of warranty and the cove. nant for quiet enjoyment refer to the future, and, hence, run with the land.

Of the covenants of warranty and quiet enjoyment there is no breach until eviction, and hence no cause of action can arise until that time. There is, therefore, no conflict of interest between successive holders of the title. An earlier grantee of the land who has parted with his title cannot recover against his covenantor until himself compelled to respond on his own covenants to his grantee. (Withy v. Mumford, 5 Cow. 137; Rawle on Covenants of Title, $ 215.)"

In Mygatt v. Coe (147 N. Y. 456) O'BRIEN, J., said: “It must be regarded as the law of this case that privity of estate is essential to carry covenants of warranty and quiet enjoyment to subsequent grantees in order to support a right of action by them against the original covenantor, when there is an eviction by paramount title. It was so held by a majority of the Second Division when the case was there, and we felt constrained, when the case was here, to follow that doctrine. (142 N. Y. 82.)”

In the same case (142 N. Y. 78) FINCH, J., said, referring to the first appeal (124 N. Y. 212): “The majority of the court held that privity of estate is essential to carry covenants of warranty to subsequent grantees so as to support a right of action by them against the original covenantor whenever evicted by a title paramount to his; that a covenant of warranty made by one having neither title nor possession, and so no estate in the land, will not run with it into the hands of subsequent grantees, but will stop where the privity of contract ends, and so at the first or original covenantee.”

FOLLETT, Ch. J., in the same case (124 N. Y. 212), said: “There are three manner of privities, viz., (1) Privity in case

App. Div.] First Department, November, 1911. of estate only. (2) Privity in respect to contract only. (3) Privity in respect to estate and contract together.' (2 Sugd. Vend. *714; 4 Cruise's Dig. *376; Greenleaf's ed. 458.) The term privity in estate denotes mutual or successive relationship to the same rights of property. (Stacy v. Thrasher, 6 How. [U. S.] 44, 59; Green. Ev. $$ 189, 523; Big. Est. [6th ed.] 347.) “There is a certain privity between the grantor and grantee of the land. It is not the privity arising upon tenure, for there is no fiction of fealty annexed. It is, however, the same sort of privity which enables the grantee of a purchaser to maintain an action upon the covenants of title given to his vendor; and it is moreover a privity of the same nature with that which obtains between the grantor and grantee of terms for life and for years.' (Van Rensselaer v. Hays, 19 N. Y. 68, 91.)

Under the facts found there was no privity of estate, actual or assumed, between the defendant (the covenantor) and Nancy Fisher (the covenantee), only privity by contract. The defendant having no estate, title or interest in or possession of the land conveyed, there could be no privity in estate between him and Nancy Fisher, and not having covenanted or represented that he had an estate, he cannot be estopped from showing that he had none. The only privity which existed between the defendant and Nancy Fisher was by contract, which is insufficient to carry the benefit to subsequent owners of the property to which the covenants relate.

Kent states the rule in this language: "The distinction between the covenants that are in gross and covenants that run with the land (and which are covenants real, annexed to or connected with the estate, are beneficial to the owner of it, and to him only) would seem to rest principally on this ground that, to make a covenant run with the land, there must be a subsisting privity of estate between the covenanting parties.' (+ Kent's Com. 472.)”

Geiszler v. De Graaf (166 N. Y. 339), cited by respondent, simply decided that the court would hold that the covenant against incumbrances ran with the land. It thus appearing clearly that the cause of action alleged arises from privity of estate, is such action transitory or local ?

White v. Sanborn (6 N. H. 220), decided in 1833, was an

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