Coopwood v. McCandless, 54 So. 1007

54 So. 1007 | Miss. | 1911

Mates, C. J.,

delivered the opinion of the court.

In this case it is apparent that Mrs. McCandless bought a tract of land from T. D. Coopwood and paid him one thousand dollars for same. He made to her a fee-simple deed to the property, with a covenant of general warranty. At his death the title failed as to one-half of the property, and Mrs. McCandless was compelled to pay five hundred dollars, or one-half of the amount she originally paid for the- property, in order to buy in an outstanding paramount title then threatened to be asserted against .her. The demurrer admits all these facts.

The sole contention of appellant is that this is a suit for breach of the covenant of general warranty, and in order that this suit may be sustained it is contended that there must be either an actual eviction by judicial process, or a surrender of possession to a valid, subsisting, paramount legal title, asserted against the covenantee," or that there must be a holding of the grantee out of possession by such title, so that he could not enter. In support of this contention appellant cites the case of Dyer v. Britton, 53 Miss. 270. The authority cited is destructive' of the contention. It is true that the authority does hold with the contention of appellant, when it is manifest that the covenantee desires to ground his case on the technical action on the covenant of general warranty; but this case also shows that there are two other remedies that the covenantee may invoke without, waiting for eviction or surrender of the premises. These other two actions which may be invoked are assumpsit or suit in chancery.

All that is required of a declaration is that it contain a statement of the facts constituting the cause of action in ordinary and concise language. If a declaration does this, under the practice now in effect in this state, no objection can be successfully urged on the ground that the form should have been different. This is declared by section 729 of the Code of 1906, and was the law in all Codes preceding the Code of 1906 from the Code of 1880. The abolition of all form does not seem to have been in the Code of 1871, the Code that was in effect at the date of the decision in the case of Dyer v. Britton, supra. This court now looks to the merits of the case as stated by the declaration, rather than the form in which it is stated. If a declaration states a good cause of action, no matter what may be its form, or the name given it by the party filing it, this court will ignore all but the fact of whether or not it states a cause of action. See Evans v. Miller, 58 Miss. 120, 38 Am. Rep. 313; Trust Co. v. Hardwood Co., 74 Miss. 584-594, 21 South. 396.

Looking to the declaration in this case, and the admitted facts under it, it is manifest that Mrs. McCandless is entitled to recover back this five hundred dollars from the estate of T. D. Coopwood. It is quite true that the declaration concludes with the statement that “plaintiff brings this suit and demands judgment against defendant for the sum of five hundred dollars, the amount she is damaged by the breach of said covenant of warranty, ’ ’ thus indicating that it was filed as a technical action on the covenant of general warranty; but this court looks to its substance, and not to its form. In tbe case of Dyer v. Britton, 53 Miss. 270, tbe court clearly indicated that, but for tbe fact that a plaintiff could resort to two other remedies in order to recover back money necessarily expended in discharging the estate from incumbrances or to get in a title to avoid eviction, the rule of law contended for by appellant would have been changed as far back as 1876, and before the passage of a statute abolishing all forms of action. The court said, in the case of Dyer v. Britton, supra, that the question had no significance other than "that of mere pleading; that it was of no practical importance,- since a' covenantee had two other remedies, avoiding the technical and unnecessary rule of law applicable when the suit was on the covenant of general warranty. But to quote the exact language of the court, found on page 278 of 53 Miss., in Dyer v. Britton, it is as follows:' “If we did not have in our jurisprudence a principle which is equitable and just, we should not hesitate to overturn these decisions;' if they were the obstruction. But we have in the remedial machinery of our jurisprudence full, practical, and adequate remedy and redress for the covenantee, to reimburse him for the outlays in extinguishing such incumbrances, or in getting in the adverse paramount title. He may recover the money back in the action of assumpsit, as in Kirkpatrick v. Miller, 50 Miss. 521, or he may sue in chancery. The action of assumpsit may be resorted to in every instance where money has been necessarily expended to discharge the estate from incumbrances, or to get in a title to avoid an eviction. In no state of case in this action is the covenantor liable to refund more than was actually paid by the covenantee, and never in excess of his liability on the covenant, where an actual eviction could he assigned as a breach; so that we afford to the covenantee a cheap and simple remedy at law, which administers as complete and full indemnity as that class of cases elsewhere, which recognize breaches of the covenant as constructive and technical evictions. ’ ’

Of course, in every case where the covenantee purchases an outstanding paramount title, or pays an incumbrance, as stated in the case of Dyer v. Britton, he *‘ assumes the risk of judging correctly as to the character and validity of the incumbrance or- title which he buys in. He must establish, as a condition precedent to recovery, either at law or in equity, that it was a paramount lien or title against which the warrantor was bound to defend him, and that he acted under a necessity to save the estate.” See, also, Kirkpatrick v. Miller, 50 Miss. 521; Green v. Irving, 54 Miss. 455, 28 Am. Rep. 360. Affirmed.