404 CENTRAL LAW JOURNAL. GARNISHMENT-CITY OFFICERS-MUNICIPAL POLICE. It is decided by the Supreme Court of Georgia in Connolly v. Thurber-Whyland Co., 18 S. E. Rep. 1004, that for reasons of public policy, neither the chief nor any member of the municipal police of a city or town is subject to garnishment for effects which come to his hands by color of his official authority and without the consent of the owner whether he obtains them lawfully or unlawfully. Lumpkin, J., says: In In a It can scarcely be doubted that, where one charged with drunkenness and disorderly conduct is arrested by a policeman in a city, it is the duty of the officer, if the prisoner is so intoxicated as to be incapable of properly caring for money or other valuables on his person, to take possession of the same, for safe-keeping, and for the purpose of restoring them to the owner upon or before his discharge from custody. This duty might also devolve upon the arresting officer, in some cases, when the prisoner was not intoxicated, as, for instance, when he was about to be confined among other prisoners who might steal from him the articles in question. In the view we take of the law applicable to the case before us, however, it is entirely immaterial whether Cooper was or was not intoxicated, or whether he was deprived of his money and other valuables lawfully or unlawfully. neither event was the officer who first took possession of the property, or his superior officer, to whom it was afterwards delivered, liable to the process of garnishment at the instance of Cooper's creditors. case of this kind, the property is in custodia legis; and it is contrary to public policy that an officer of a court or of a municipal corporation be subjected to the process of garnishment, under such circumstances. See Kneel. Attachm. § 410; Mechm Pub. Off. §§ 875, The doctrine 876; Drake, Attachm. (7th Ed.) § 509b. laid down by these text writers is supported by Morris v. Penniman, 14 Gray, 220; Bank v. McLeod, 65 Iowa, 665, 19 N. W. Rep. 329, and 22 N. W. Rep. 919; Robinson v. Howard, 7 Cush. 257. And the same conclusion is announced in 8 Am. & Eng. Enc. Law, 1132-1135, under the title "Garnishment." The reason for the rule is that public corporations are created for the public benefit, and public policy demands that such bodies and their officers should not be subjected to such interruptions, inconvenience, and delay as would prevent that prompt and efficient discharge of official duties so necessary to the public welfare. In this connection, attention is called to the apt and appropriate language of Chief Justice Bleckley in Born v. Williams, 81 Ga. 798, 7 S. E. Rep. 868. A very strong case in point is that of Davies v. Gallagher, defendant, and Cassidy, garnishee, reported in 17 Phila. 229. We have not quoted from any of the authorities above cited, but any one who will take the pains to examine them cannot fail to be convinced Bethat our judgment in the case at bar is correct. sides the authorities above mentioned, many others to the same effect could doubtless be found. Exemption from the process of garnishment is not for the benefit of the officer, but for the benefit and protec tion of the public, whose interest it is that he shall not be subjected to the necessity of leaving his post of duty to answer in a proceeding in which he has no official concern. The present case affords a striking illustration of the necessity of a rule of this kind. It is obvious, without elaboration, that to attend to the numerous lawsuits now pending against Connolly, the chief of police, must necessarily require a very large portion of his time and attention, which should be devoted to the public service; and, if he were liable to garnishment in every case of this kind which might arise, it is easy to perceive that he would be subjected to constant danger of heavy personal loss, or else be forced to seriously neglect his official duties. The former would be a great hardship upon him, and the latter a serious and entirely unwarrantied hardship upon the public. The policy of the law forbids that either of these things should occur. It will be observed we have not touched upon the question as to whether or not a policeman would be liable to the process of garnishment in a case where a prisoner voluntarily deposited with him money or other valuables for safe-keeping. Nor is it necessary, in the present case, to decide this question. It distinctly appears that Cooper's property was taken from his possession without his consent, and that the taking of the same by the officer was under color of his official authority. DIVORCE-WHAT CONSTITUTES DESERTION. -In Watson v. Watson, 28 Atl. Rep. 467, recently decided by the Court of Chancery of New Jersey, it was held that desertion, as a statutory ground for divorce, was not established by the mere withdrawal of a wife from her husband's bed, where they continued to appear together at the table of the boarding house at which they lived, and consulted indirectly as to the needs and comforts of their children at school, the wife caring for their rooms and linen, while the husband supplied her with money and paid her board. The court said: The question is presented whether the withdrawal of a wife from sexual intercourse with her husband, assuming that there was no just cause for the withdrawal, alone constitutes "desertion" within the meaning of the statute. A single word as to a sugges, tion of acquiescence on the part of the petitioner. It does not appear that he, with determined earnestness, ever sought the restoration of his marital rights. He appears rather to have submitted to the position in which his wife's determination placed him, acting as one who, for cause, acquiesces in the justness of a decision against him, basing whatever feeble effort he may have made in that direction upon consideration for their children. Upon her part, on the contrary, the attitude appears to be one of distress, and yet, filled with consciousness of power which the right gives, she fearlessly demands her support from him. I think however that this appearance of acquiescence of the husband rests too largely upon inference and conjecture to be made the basis of a decision. I prefer to assume that there was no acquiescence, and to meet the question first stated, I have read with interest the elaborate argument of Mr. Bishop, in his work on Marriage, Divorce and Separation (vol. 2, § 1676 et seq.), in favor of an affirmative answer to this question as the "better opinion," but I am unwilling to accept it as the true construction of our statute. The word "desertion," I think, is used in the sense of "abandon," to the extent that the deserted party must be deprived of all real companionship and every substantial duty which the other owes to him or her. It would I think degrade the marriage relation to hold that it is abandoned when sexual intercourse only ceases. The lawfulness of that intercourse is perhaps a prominent and distinguishing feature of married life, but it is not the sum and all of it. The higher sentiment and duty of unity of life, interest, sympathy, and companionship have an important place in it, and the thousand ministrations to the physical comforts of the twain, by each in his or her sphere, in consid eration of the marriage obligation, and without ceaseless thought of pecuniary recompense, fills it up. These latter factors may possibly, to some extent, exist in other relations of life, but not in completeness. They are all necessary to the perfect marriage relation. My opinion is that our statute means that divorce may be had when substantially all of these duties and amenities shall have been abandoned by the guilty party, wilfully, continuedly and obstinately, for two years, and not until then. In other words, the desertion must be complete, not partial; and, when the party accused remains in discharge of any duties which rise in value above mere pretense and form, the desertion, which the statute contemplates does not exist. This I understand to be the meaning accorded to the word "desertion" in the statute of Massachusetts. Southwick v. Southwick, 97 Mass. 327; Magrath v. Magrath, 103 Id. 577; Cowles v. Cowles, 112 Id. 298. In the present case, I find that, within two years prior to the filing of the bill, the defendant did remain with her husband, in the discharge of, at least, a substantial portion of her duty to him. MUNICIPAL CORPORATION-ELECTRIC LIGHT FRANCHISE.-The Supreme Court of Iowa hold, among other things, in City of Keokuk v. Ft. Wayne Electric Light Co., 57 N. W. Rep. 689, that a municipal ordinance granting a franchise to occupy the city street with poles and wires for the distribution of electric light and power is within Code § 471, which requires ordinances authorizing the erection of electric light and gas plants to be submitted to a vote of the people, and the fact that an electric light company has partly complied with its contract to furnish a city with a specified number of arc lights does not prevent it from setting up the invalidity of the contract when sued for its breach thereof, where the city made no payment for electric lights in excess of the service actually rendered. Kinne, J., dissents. The court says: It is a conceded fact that no vote of the people of the City of Keokuk was at any time taken upon the question of the establishment of an electric-light plant by the Gate City Company nor by the Badger Company. It was held by this court, in the case of Hanson v. Hunter (Iowa), 48 N. W. Rep 1005, that an ordinance of a city granting a franchise to erect an electric-light plant in the city, and to occupy streets with poles and wires, was void, because it was not authorized by a vote of the people. A petition for rehear ing was allowed in that case, and after most able and exhaustive arguments of counsel, and a full reconsideration of the question, the petition for rehearing was overruled, and the original opinion adhered to. 53 N. W. Rep. 84. Counsel for appellant contends that the decision in Hanson's Case should be overruled. We discover no grounds upon which such a proposition ought to be entertained. It is claimed, however, with great confidence, that the cited case is not applicable to the facts in the case at bar. The proposition of counsel is that the contract in the case at bar is an executed contract, and that it would be unjust to allow the defendant to retain the fruits of the contract, and at the same time claim that the con. tract is void. But the plaintiff made no payment for the electric lights in excess of the service rendered; it incurred no liability in advance for the lights which were furnished. The ground upon which it claims damages is that it has and will be compelled to pay eight dollars per light per annum more than it would have been required to pay the defendant if it had erected and maintained 125 lights for five years; and the court adopted that basis in ascertaining the measure of damages. It will be seen that it is a mistake to designate the contract as executed. An executed contract is "one which has been fulfilled,-one which has been wholly performed; as, when A and B agree to exchange horses, and do so immediately," (2 Bl. Comm. 443); "one in which both parties have done all that they are required to do," (Bouv. Law Dict.) This is the strict technical definition of an executed contract. An executory contract is "one in which some future act is to be done; as, where on agreement is made to build a house in six months, or to do any act at a future day." Id. It is perhaps not an important question as to what the contract in this case may be named. Counsel for appellant, in support of the claim that the defendant cannot avail itself of the invalidity of the contract, cites Ang. & A. Corp. 240, and calls special attention to the following language: "The courts of New York have gone very far in enforcing contracts made by corporations, although they are not justified by their charters; and the law in that State now appears to be that such a contract, which is purely executory on both sides, and where no wrong will be done if the parties are left in their previous situation, should not be enforced, but that the executed dealings of corporations must be allowed to stand for an'l against both parties, when the plainest rules of good faith so require." The following extract from Sedg. St. & Const. Law, 73, is also set out in argument: "It must be further borne in mind that the invalidity of contracts made in violation of statutes is subject to the equitable exceptions that although a corporation, in making a contract, acts in disagreement with its charters where it is a simple question of capacity or authority to contract, arising either on a question of regularity of organization or of power conferred by the charter a party who has had the benefit of the agreement cannot be permitted, in an action founded on it, to question its validity. It would be in the highest degree inequitable and unjust to permit the defendant to repudiate a contract, the fruits of which he retains. And the principle of this exception has been extended to other cases. So, a person who has borrowed money of a savings institution upon his promissory note, secured by a pledge of bank stock, is not entitled to an injunction to prevent the prosecution of the note, upon the ground that the savings bank was prohibited by its charter from making loans of that description." It appears to us to be quite clear that the facts in this case do not bring it within the rule announced in these extracts from the learned authors. It is true, there are a large number of cases to be found supporting the rule. It is founded on the plainest principles of justice. No court has ever decided that a corporation may borrow money; and keep it because it was forbidden by its charter to borrow money. If the plaintiff in this case had paid the defendant in advance for the electric-light service, and had brought an action for damages, the case would be within the rule laid down in the text books above cited. No one would contend that the defendant could avail itself of the invalidity of the contract to enable it to retain that which it never earned, and thus violate the plainest rules of good faith. The evidence in this case tends to show that it was worth more than $60 per annum to maintain are lights in the city of Keokuk. The defendant declined to continue furnishing lights at that sum. The city made a contract with Hubinger for 125 lights at $68 a year, and the case was tried upon the theory that they were worth that sum. The plaintiff had forfeited the $500 deposit, and had not paid anything in excess of $60 for each light furnished. It made its contract with Hubinger, and brought this suit before the time expired in which defendant was to furnish the additional lights. We think it is in no position to demand any further damages than those already received. The demand that the defendant should have continued to furnish lights at a loss for five years, and be liable at any time to have its compensation for the lights cut off at the suit of any tax payer, as was done in Hanson v. Hunter, supra, is not demanded by any equitable consideration which we are able to discover. The cases cited by counsel are, as we have said, founded on entirely different facts, and involve a principle in no wise applicable to the facts of this case. The judgment of the district court is reversed. COVENANTS OF WARRANTY. I. Distinctive Characteristics.-The early settlers in this country brought with them the covenants for title that were then coming into use in England and also the old form of warranty which had not been yet entirely abandoned, both of which are to be found in the early conveyances in this country, and have come down together to our time. The covenant of warranty in its original form was introduced into England at the time of the conquest, and disappeared after the passage of the statute of uses which introduced conveyances, and dispensed with livery of seisin, and thus rendered the covenant of warranty inappropriate to such modes of assurance. These old deeds contained covenants of title as used in England at the time, with clauses of warranty, with or without words of covenant which later became more general, and now are almost universal. There have been different opinions as to the American doctrine of covenants of warranty, some giving it much or all the effects of warranty at com Even mon law, while others have thought it to be a covenant for quiet enjoyment, which is considered by most text-book writers the sounder view. It may be either, general, i. e., extending to the claims of all persons whomsoever, or special, restricted to the acts of the grantor and those claiming under him, or of any other person particularly named. when general, this covenant and that for quiet enjoyment are not broken by the tortious disturbances, unless so expressed, of a stranger, because it secures the enjoyment against lawful interruption only, although the word lawful be not contained in the covenant; but even when special they cover the tortious acts, other than mere trespasses,2 of the covenantor himself, or the tortious acts of any other person specially named. It is an assurance of the grantor of an estate that the grantee shall enjoy the same without interruption, by virtue of a paramount title, and goes to the title as well as to the possession.+ It is a personal covenant, and runs with the land. In America, an agreement to convey by "warranty deed," or other equivalent language, usually means that the deed shall contain a covenant of warranty against the acts or claims of all persons. Although the words "warrant and forever defend" were those generally inserted in a warranty, yet the word defend added no additional force,s and apart from the word "warrant" the covenant could seem to be no more than an engagement that it should bar the covenantor and his heirs from ever claiming the estate, and that he and they should undertake to de 1 Rawle on Covenants for Title, p. 213; Athens v. Nole, 25 Ill. 178. Bostwick v. Williams, 36 Ill. 70; Caldwell v. Kirkpatrick, 6 Ala. 62; Reed v. Hatch, 55 N. H. 336; Stewart v. West, 14 Pa. 336; Emerson v. Proprietors, 1 Mass. 464; Fowler v. Poling, 2 Barb. (N. Y.) 303; 6 Barb. (N. Y.) 169. 2 Cresse v. Young, 2 Show. 425; Lloyd v. Tonkies, 1 T. R. 671; Wotton v. Hile, 2 Saund. 180 N.; Avery v. Dougherty, 102 Ind. 443; O'Keefe v. Kennedy, 3 Cush. (Mass.) 325. 3 Moore v. Lanham, 3 Hill (S. C.), 304; Rindskopf v. Farmers' Loan & Trust Co., 58 Barb. (N. Y.) 36. V. 4 Fowler v. Poling, 6 Barb. (N. Y.) 170; Patton v. Kennedy, 1 A. K. Marsh. (Ky.) 389; Williams Wetherbee, 1 Aik. (Vt.) 233; Blanchard v. Brooks, 12 Pick. (Mass.) 57; Brown v. Jackson, 16 U. S. 449. 5 Townshend v. Morris, 6 Cow. (N. Y.) 126; Cole v. Raymond, 9 Gray (Mass.), 217. 6 Rindskopf v. Farmers' Loan Co., 58 Barb. (N. Y.) 36; Suydam v. Jones, 10 Wend. (N. Y.) 180; Wead v. Larkin, 54 Ill. 489. 7 Anderson's Dictionary of Law, p. 1105. 8 Rawle on Covenants, p. 217. 11 fend it when assailed by paramount title;" this covenant has been held in some States to contain within itself all the other covenants for title, and the statutory warranty for a deed in fee is so construed in Iowa,10 and the form of covenant of general warranty contained in short form of leases as provided by statute in South Carolina has been construed in the same way. The covenant of warranty is the only one used in deeds of conveyance in fee simple in many States where this view has not been taken. This, doctrine has been denied 12 but has been sustained in the eastern States in cases which are closely analogous to it-thus covenant will lie for an eviction by legal process under a prior mortgage, 18 or for the existence of an easement or right of way over the premises, 14 but not for the opening of a highway over the land conveyed in the exercise of eminent domain.15 II. What Constitutes a Breach.-To constitute an "actual eviction" sufficient to break this covenant the adverse title must be actually paramount at the time of the conveyance 16 and it must be hostilely asserted,17 but it is not essential that there be any physical expulsion of the covenantee. The rule is thus stated in Beebe v. Swartwout, 8 Ill. 182: "It was held in 7th Wendell, 281, that it is not sufficient evidence of a breach of covenant of quiet enjoyment that the coven antee had been sued and recovery had against him in trespass by a third party claiming the land, unless the plaintiff avers and proves that such person, before or at the date of the covenant, had lawful title, and by virtue thereof entered and arrested the plaintiff. This rule that it requires disturbance and lawful title to constitute a breach of this 9 Stewart v. West, 2 Harris (Pa.), 338; Rindskopf v. Farmers' Loan & Trust Co., 58 Barb. (N. Y.) 49. 10 Funk v. Cresswell, 5 Iowa, 62. 11 Jeter v. Glenn, 9 Rich. (S. C.) 374; Evans v. McLucas, 12 S. C. 62. 12 Bostwick v. Williams, 36 Ill. 70. 13 White v. Whitney, 3 Metc. (Mass.) 81, 89; Tufts v. Adams, 8 Pick. (Mass.) 547; Furnas v. Durgan, 119 Mass. 500. 14 Haynes v. Young, 36 Me. 557; Russ v. Steele, 40 Vt. 310. 13 Dobbin v. Brown, 12 Pa. 75; Spader v. N. Y. El. R. R., 3 Abb. (N.Y.) Pr. N. C. 467. 16 Beebe v. Swartwout, 8 Ill. 183; Moore v. Vail, 17 Ill. 185; Rindskopf v. Farmers' Loan Co., 58 Barb. (N. Y.) 49; Jenkins v. Hopkins, 8 Pick. (Mass.) 350; Phelps v. Sawyer 1 Aik. (Vt.) 157. 17 Shelton v. Lease, 10 Mo. 482; Wilson v. Irish, 62 Iowa, 260; Axtell v. Chase, 83 Ind. 546. covenant, is well supported by decisions in other States besides New York. 17 Mass. 589-90. To paramount title provided he can establish it he may peaceably and voluntarily yield, but he cannot be permitted to abandon the premises or buy an outstanding claim. where a mere claim is set up by another. 2 Saund. 181a, note 10, 4 Mass. 352." There must be an actual or constructive eviction of the whole or a part of the premises, 18 but it is held in South Carolina that the covenant is broken by the existence of a paramount title in a third person without either actual or constructive eviction. A grantee may voluntarily yield the possession upon demand of the owner of the paramount title,19 but he does so at his own peril, and in a subsequent action on a covenant the burden of proof is on him to show that the title to which he yielded was really the paramount title.20 In McGary v. Hastings, 39 Cal. 366, the court says: "The true rule deducible from recent cases is that the covenant is broken whenever there has been an involuntary loss of possession by reason of the hostile assertion of an irresistible paramount title. Nor is it necessary that the paramount title should have been established by judgment before the covenantee will be authorized to surrender the possession." Under the covenant of warranty it has been held that a final recovery in ejectment is a breach; that eviction in such a case is synonymous with ouster, 22 and that a judgment in ejectment is not a breach, but a judgment in ejectment is also held to be a breach without actual eviction;24 for an eviction is complete when a constructive dispossession has taken place, and the weight of authority sustains this latter view. When 18 Beebe v. Swartwout, 8 Ill. 179; Funk v. Cresswell, 5 Iowa, 88; Mott v. Palmer, 1 N. Y. 564. 25 23 19 Claycomb v. Munger, 51 Ill. 376; Brandt v. Foster, 5 Iowa, 297; Booker v. Bell, 3 Bibb (Ky.), 173; McGary v. Hastings, 39 Cal. 360; Donnelly v. Thompson, 10 Me. 170. 20 Claycomb v. Munger, 51 Ill. 377; Crance v. Collenbaugh, 47 Ind. 256; Ryerson v. Chapman, 66 Me. 557. 21 Williams v. Wetherbee, 1 Aik. (Vt.) 233. 22 Hamilton v. Cutts, 4 Mass. 352. 23 2 Hill, 384; 5 Harr. & J. 414; 3 Bibb (Ky.), 174; cited in Fowler v. Poling, 6 Barb. (N. Y.) 171. 24 Hannah v. Henderson, 4 Ind. 174; Norton v. Jackson, 5 Cal. 263; Cummings v. Kennedy, 3 Litt. (Ky.) 118; Loughran v. Ross, 45 N. H. 792: Cowdrey v. Corb, 44 N. Y. 382; King v. Kerr, 5 Ohio, 158. 25 Jones v. Warner, 81 Ill. 346; Kans. Pac. R. R. Co. v. Dunneger, 19 Kan. 539; McGary v. Hasting, 39 Cal. 360. the lessor enters it is clear that he exposes himself to an action on his covenant, although he enters wrongfully, notwithstanding the covenant provides against lawful evictions only. 26 Still a mere entry, though wrongful and unlawful, will not constitute a breach of covenant. It is necessary that something more than an entry and injury be shown, for these are the elements of trespass, it must be shown that the entry was an assertion of right or title; in other words, was in the nature of a total or partial eviction.27 In New Jersey, 28 it has been held that there must be a disturbance, or deprivation, or cessation of the possession by the prosecution and operation of legal measures; while in South Carolina, 29 an action may be sustained on the covenant of warranty, before eviction, by showing a paramount title. In New York,30 the rule is that there must be an actual disturbance of the possession, and that where the covenantee is actually out of possession, either by due process of law, or by entry of the lawful owner, or by surrender to one having paramount title, there is an eviction, the covenant is broken, and an action will lie. III. Liability of the Covenantor.-It is proposed under this subdivision to consider that interesting class of cases in which there has been a breach of a covenant of general warranty made by two or more covenantors in a conveyance as tenants in common by reason of the failure of title as to one and a consequent eviction from that portion of the property conveyed, through the enforcement of an equitable lien, of which neither the vendee nor the other cotenant had actual or constructive notice, and the endeavor to fix the liability on both cotenants. As these cases are ruled by the construction of each instrument it is only practicable to state the general rules governing such cases which are to be applied to the circumstances of the particular case. The liability upon an express covenant, as also the benefit of it, is joint or several according as the language used may indicate. Where an obligation is created by two or more it is usually presumed to be joint. If there are two or more 26 Avery v. Dougherty, 102 Ind. 447. 272 Platt on Leases, 314. 28 Stewart v. Drake, 4 Halst. 141. 29 Biggers v. Bradley, 1 McCord, 500. 30 Fowler v. Poling, 6 Barb. (N. Y.) 169. 31 Carleton v. Tyler, 16 Me. 392; Comings v. Little, 34 covenantors, they may bind themselves jointly or severally, or both jointly and severally, in other words, the liability of the covenant may be either joint or several, or both joint and several, and if there are two or more covenantees the covenant may be entered into with them jointly or severally or both jointly and severally; but in this case, however the covenant be framed, it cannot inure to the benefit of the covenantees both jointly and severally.32 jointly and severally. 32 Where a liability is created by covenant the liability will be construed as joint, or joint and several, or sev eral, according to the express words, but where several covenantors covenant, each as to his own acts and defaults only, the effect is the same as if he had executed a separate deed on the same parchment, where they are unambiguous, but where they are ambig. uous, the liability will depend on the interest of the covenantors in the property, or other circumstances of the parties; thus, where a joint covenant was given by continuing partners to a retiring partner for indemnity, or to pay specified sums to him, a lease to partners for a house in which they carried on their business containing joint covenants by them, 86 were construed to create a joint liability by the express words. A covenant for themselves and either of them creates a joint and several liability, as also did "For themselves and every of them."'88 In Keightley v. Watson, 3 Ex. 721, the court said "If a covenant be so constructed as to be ambiguous, that is, so as to serve either the one view or the other, then it will be joint, if the interest be joint, and it will be several if the interest be several. On the other hand, if it be in its terms unmistakably joint, then though the interest be several, all the parties must be joined in the action. So if the covenant be made clearly several, the action must be several, though the interest be joint. It is a a question of construction." In an agree ment under seal by tenants in common to sell land, in which was a covenant by the purchasers "with the vendors and each of them 37 24 Pick (Mass.) 266; Donahoe v. Emery, 9 Metc. (Mass.) 67; Field v. Squires, Deady, (U. S.) 366. 32 Elphinston on Interpertation of Deeds, * p. 431. 33 Matthewson's Case, 5 Rep. 23 (a). 34 Summer v. Powell, 2 Mer. 30. 35 Wilmer v. Curry, 2 De G. & Sm. 347. 36 Clark v. Bickers, 14 Sim. 639. 37 Enys v. Donnithorne, 2 Burr. 1190. 38 May v. Woodward, Freem. K. B. 248. |