115 Tenn. 1 | Tenn. | 1905
delivered the opinion of the Court.
The plaintiff below, Harris L. Brown, recovered judgment against tlie defendant, Ford N. Taylor, for the sum of |92.65, as damages for breach of covenant against incumbrances contained in a deed for'the sale of land. Both sides appealed and have assigned errors.
The cause was heard by the circuit judge, without the aid of a jury, upon evidence which is practically undisputed. ‘The record reveals that on the 29th of February, 1904, Ford N. Taylor and wife conveyed to Harris L. Brown, by deed duly executed and recorded, 'a tract of land in the suburbs of Memphis, for which Brown agreed to pay the sum of $5,600, whereof $1,400 was paid in cash, and notes executed for the balance of the purchase money, due in one, two, and three years, with interest from date. The deed contained the usual covenants and warranties that the premises were free from incumbrances and that the grantors would forever defend the same against all lawful claims whatever.
It is disclosed by the record^ that the property was purchased by Brown for the purpose of making a subdivision, and it was agreed that, upon certain cash
It further appears that at the date of the deed there was an incumbrance on the land, consisting of an outstanding lease, with ten months to run before its expiration. It was contended on behalf of Taylor that Brown had actual knowledge of the incumbrance, and that the lessee thereby became his own tenant. It is shown that Taylor, the vendor, before executing the conveyance, stated to the agent who was negotiating the contract of sale that there was a gardener on the land who had a lease until such time as he could get his crop gathered for that year, probably some time in September or October, and that he desired this gardener to be protected. It is further shown that this agent, before the deed was executed or title examined, communicated to Brown the fact that there was a gardener on the place and Taylor wanted him protected, and that this gardener was at the time paying as rental the sum of $7.50 per month. Brown replied that he did not know about the $7.50 per month, but supposed the matter could be arranged in some way. Plaintiff below now seeks to recover damages for breach of the covenant against incumbrances, upon the facts stated in regard to the existence of an outstanding lease on the premises. It is denied on behalf of Taylor that Brown is entitled to any recovery, for the reason that he accepted a deed with full knowledge of this incumbrance,
While this rule is undoubtedly supported by highly respectable authority, it is not in our view, the sound rule, and is not sanctioned by the weight of authority.The true rule has thus been formulated in the Cyclopedia of Law and Procedure, vol. 11, p. 1066, as follows : “Knowledge on the part of the purchaser of the existence of incumbrances on the land will not prevent
The general rule is that the right of action on covenant against incumbrances arises upon evidences of an incumbrance, irrespective of any knowledge on the part of grantee, or of any eviction of him, or of any actual injury it has occasioned him. 2 Greenleaf on Ev., sec.
The remaining question that arises is in respect of the proper rule for admeasurement of damages. The trial judge adopted as a measure of the damages the rental value of said property for the unexpired term at $8 per month. He also* allowed counsel fees, amounting to $10, incurred by Brown in a misdirected action before a justice of thé peace to evict the lessee from the premises. It was admitted on all hands that the lessee was rightfully in possession of the premises, and of course, the purchaser, Brown, had no right to evict him until the expiration of his term. It may be remarked there was no authority for the allowance of counsel fees in such a case; but, on the contrary, in Williams v. Burg, 9 Lea, 455, it was expressly decided by this court that counsel fees are not taxed as costs, nor regulated as to amount by law in this State, and that sums paid therefor by the covenantee for defense in ejectment by adverse claimant are not recoverable from covenantor. This principle is conclusive of any allowance for counsel fees in this case.
Recurring to the question made touching the measure of damages, it is insisted on behalf of counsel for Brown that, when he purchased this land, he disclosed to his grantor that his purpose in buying the land was to make
We are constrained to hold, upon the facts disclosed in this record, that the plaintiff has sustained actual damages in being deprived of immediate possession of the premises; but in view of all the facts, it is adjudged that he is only entitled to recover rental value of the property during the currency of the lease as compensation for the breach of covenant against incumbrances. As modified herein, the judgment is affirmed.