No. 4077 | Utah | Apr 2, 1924
In January, 1921, plaintiff commenced this action in the district court of Salt Lake county against the defendant to recover damages for an alleged breach of the covenants of warranty and for quiet enjoyment.
The plaintiff, in his complaint, sets forth the necessary facts respecting the conveyance of certain real estate by the defendant to one Christopherson and the conveyance of said real estate by said Christopherson to the plaintiff; the covenants of warranty and the breach thereof; the eviction of plaintiff from a part of the premises conveyed, and the damages including costs and attorney’s fees, incurred by plaintiff in attempting to sustain the title to the real estate referred to. The defendant, in his answer, admitted the deeds of conveyance and the covenants of warranty and for quiet enjoyment as alleged, but denied the alleged breach thereof, and, as an affirmative defense, in substance averred that the area in question, although included within the deed from the defendant to Christopherson, and from which plaintiff alleged he was evicted, nevertheless, was not owned by the defendant for the reason that the same was taken off from the land conveyed by a long-established boundary line which existed between the land conveyed to the plaintiff and the land of one A. J. Casper, a neighbor of defendant, and that said boundary line was plainly marked upon the ground and was by plaintiff known to exist at the time he purchased the land and received the deed therefor and went into possession of the land. In this connection it should be stated that the area in question in this action was the subject of litigation in a cer
This case was tried to the court without a jury. The court, after finding that the deeds containing the covenants as aforesaid were duly executed and delivered — the bringing of the action as before stated- — that the plaintiff had duly notified the defendant of the pendency of said action and called upon him to defend the -title as warranted by him, further found that prior to the time that plaintiff purchased the land described in said deed he (the plaintiff) had examined the land and the boundaries thereof and saw and knew where said boundaries were located and marked upon the ground; that the court, in the former action in its decree, “fixed and determined the boundary to the lands” in question, etc. As conclusions of law the court found that the “plaintiff is not entitled to recover any damages whatsoever from the defendant; that the plaintiff is estopped to claim any loss or damage or costs because of the alleged discrepancy between the deed of conveyance and the boundary line as located upon the ground”; and that the action should be dismissed. Judgment was duly entered dismissing the action, from which plaintiff appeals.
The errors assigned are numerous, and plaintiff assails the findings of fact, the conclusions of law, and the judgment, and also insists that the court erred in the admission of certain evidence over plaintiff’s objections and exceptions. It is not necessary to refer specifically to the assignments of
The deed in question here was made and executed in accordance with the form provided by our statute (Comp. Laws Utah 1917, § 4881). That section also defines the legal effect of such a deed. It is provided:
“Such deed, when executed as required by law, shall have the effect of a conveyance in fee simple to the grantee, his heirs, and assigns, of the premises therein named, together with all the appurtenances, rights and privileges thereto belonging, with covenants from the grantor, his heirs, and personal representatives, that he is lawfully seized of the premises; that he has good right to convey the same; that he guarantees the grantee, his heirs, and assigns in the quiet possession thereof; that the premises are free from all incumbrances; and that the grantor, his heirs, and personal representatives will forever warrant and defend the title thereof in the grantee, his heirs, and assigns, against all lawful claims whatsoever. Any exceptions to such covenants may he briefly inserted in such deed following the description of the land.”
The covenants of general warranty and for quiet enjoyment are covenants running with the land. Wesco v. Kern, 36 Or. 433" court="Or." date_filed="1900-01-08" href="https://app.midpage.ai/document/wesco-v-kern-6898229?utm_source=webapp" opinion_id="6898229">36 Or. 433, 59 Pac. 548, 60 Pac. 563. The law in that regard is correctly and very tersely stated in 7 R. C. L. p. 1141, § 54, in the following words:
“The covenant for warranty and that for quiet enjoyment are, in the main, identical, since the same occurrence of circumstances is necessary to their breach. They equally possess the capacity of running with the land, and the rule of damages is the same in both.”
While there is some diversity among the courts respecting the legal effect of other covenants usually found in deeds containing covenants of warranty, yet practically all of the decisions of the courts of England and of this country support the text above quoted relative to the legal ef-feet of covenants of warranty and for quiet enjoyment. The question therefore is: Can the judgment of the district court be sustained in the face of the fact that the covenants of warranty and for quiet enjoyment are admitted and the further fact that it is conceded that plaintiff was excluded from a small area of gro.und which is included within the description of the land conveyed by the deed of conveyance
As every lawyer well knows, the law is well settled that deeds, like all other written instruments, may not be contradicted, varied, or a'dded to by parol. While that is not precisely what was attempted in this case, in the form just stated, yet limiting plaintiff’s rights to the boundary lines as they appear upon the land is in legal effect the same as though the defendant had been permitted to vary the terms of the written description of the lands conveyed by him and to withdraw the small area in dispute from the effect of his covenants of warranty and for quiet enjoyment. The foregoing’ covenants are inserted in deeds of conveyance for the protection of the purchaser as against any defect of title and he has a right to rely on the deed as written as against outward appearances or even as against verbal statements to the contrary. The law is well stated in Maupin, Marketable Title to Real Estate, at page 335, thus:
“The covenant of warranty is intended as much for the protection of the purchaser against known defects of title as against those which are latent and unknown. It is1, therefore, no defense to an action on the covenant that the purchaser knew, at the time it was taken, that there was an adverse claim to the land.”
In Tallmadge v. Wallis, 25 Wend. (N. Y.) 115, the reason for the rule is well stated by Chancellor Walworth in the following words:
“It is a well-known fact that land is frequently conveyed with general warranty, which is warranty against eviction only, when both parties to the sale perfectly understand that the title is doubtful, or that there is some outstanding contingent interest, which may, perhaps, at a future period be the means of evicting the purchaser; and to protect the purchaser1 and enable him to recover against the vendor in case of eviction, the covenant of warranty is inserted in the deed.”
In Wright v. Nipple, 92 Ind. 310" court="Ind." date_filed="1883-12-21" href="https://app.midpage.ai/document/wright-v-nipple-7046621?utm_source=webapp" opinion_id="7046621">92 Ind. 310, it is held that iri an action for breach of the covenant of warranty an answer set-, ting, up the fact that by mutual mistake more land was in-
In Smith v. Eason, supra, after discussing a situation somewhat similar to the one in the instant case where the question of boundary was in issue, the court said:
“But here is a failure of title to a certain fixed area within the boundaries. The land is there — there are acres a plenty — but the vendor does not own them. We do not think the flexibility of the words ‘more or less’ can cover such a case. Nor can parol evidence contradict the deed. The fact that the defendant knew the land had been sold is not, of itself, a reply to the express words of the bond. Men often take warranties, knowing of the defects in the title. The very object of the warranty is often to meet known defects.”
The case of Godwin v. Maxwell, supra, also presents features similar to those in the case at bar. In the course of the opinion in that case the court said:
"Godwin made to Maxwell’s grantor a deed containing a general warranty of all of lot 143, in a certain district of Mitchell county; and, under these sections and the decisions of this court from which they were taken, that warranty included the whole of the original lot No. 143. If Godwin had, prior to the giving of the warranty, agreed with the coterminous proprietor that the line of*418 this particular lot should be so changed as to diminish the lot by twenty acres, he should have excepted these twenty acres from the warranty."
In Miller v. Desverges, supra, it is held that “parol proof contradicting the plain words of a deed” is not admissible. In that case, as in this, there was a discrepancy between the quantity of land described in the deed and the land obtained by the purchaser, and it was held -that the vendor was liable upon his warranty for the additional land.
In Barlow v. Delaney, supra, after speaking of the legal effect of the covenant of warranty in a deed of conveyance, it is said:
“It may be stated generally that the claim of complainants is that a covenant in a deed from Mrs. Boyce has been broken, and this bill is filed to recover on account of that breach. It is, in the first place, insisted by defendants that there is no equity in the bill, because the extent of Mrs. Boyce’s title was disclosed by the public records, of which complainants’ ancestor, Mr. Barlow, was charged with notice. In other words, the claim is that a cov-enantee cannot recover of the covenantor for breach of covenant if at the time of the execution of the covenant he knows of the defect covenanted against. A statement of this proposition carries its own answer. The very purpose of the covenant is protection against defects; and to hold that one can be protected only against unknown defects would be to rob the covenant of more than one-half its value, besides destroying the force of its language. If from the force of a covenant it is desired to eliminate known defects, or to limit the covenant in any way, it is easy to say so. General in its language it reaches to all defects within its terms, known or unknown.”
The foregoing excerpts clearly show the trend of the decisions, all of which run counter to the holding of the district court in the instant case. In view of the authorities we are forced to the conclusion, and so hold, that under the conceded facts the defendant is liable upon his warranty. Before leay-ing this subject, however, we desire to add that by anything we have said we do not wish to be understood as passing upon the question of liability of a covenantor in case there is an open water ditch or private right of way over lands which are the subject of warranty. Where such is the case, it is evident that such things constitute easements and are covered by the warranty against incumbrances.
The next question is what is the measure of damages in a case where there is an eviction from only a part of the land covered by the warranty? While, for the reason that the case was determined upon the other question just considered, the question of damages was not considered by the district court and therefore, ordinarily, we should not consider it, yet, in view that the judgment must be reversed and the cause remanded for a new trial, under our statute we are required to determine that question as a guide to the court upon the .retrial.
The general rule which prevails in cases where there is only a partial eviction is clearly stated in 11 Cyc. 1172, in these words:
“The rule as to the measure of damages upon the loss of part of the land conveyed, as most usually expressed, is that the measure of damages is such proportional part of the consideration money paid as the value of the land to which title fails hears to the whole land with interest and costs. The value of the part lost with interest has also been said to he the proper measure of damages, as has the actual damage resulting from the eviction — not exceeding the consideration paid — interest, and expenses of suit. Where land is sold hy the acre or front foot, the purchase price per acre or front foot of the part lost is the measure of damages.”
Tbe cases in support of the foregoing text are collated at pages 1163 and 1172 of 11 Cyc., to which authorities we refer the reader.
It will be seen from the above quotation that the plaintiff, in an action for breach of covenant, is also entitled to “costs.” There is some conflict among the courts, however, with respect to what is included within the term “costs.” Practically all agree, however, that the term “costs” includes the court costs that are usually taxed against the losing party. There are, however, a large number of decisions; indeed the weight of authority is to the effect that the term “costs” in actions of this kind includes more than merely the costs that
“A person in possession yields to what lie supposes to be a paramount title at his peril. Holding a covenant from his grantor, that he will warrant and defend the title, it would seem under the law that the covenantee may defend for him, and in fact in some cases must defend for him, and when he in good faith has done so, the taxable costs and attorney’s fees paid in such defense may be reasonably considered and regarded as a portion of the consideration paid for the title. It is paid to maintain what the grantor has affirmed by his covenant to be a perfect title. It would seem, therefore, that the covenantee should be entitled to recover the taxable costs and reasonable attorney’s fees paid in defending the ejectment suit by which they were evicted.”
After quoting the foregoing the court, in Walsh v. Dunn, makes the following observation:
“So in the case at bar, by parity of reasoning, where the cov-enantee in good faith and after notice to his grantor (covenantor), under like covenants in the conveyance, seeks to obtain possession of that for which he had paid his money, relying upon such covenants, upon neglect and refusal of his grantor to put him in possession, he should have the right to institute proceedings to obtain such possession, and being cast in such suit for want of title in his grantor, should be allowed to recover taxable costs and reasonable attorney’s fees incurred in prosecuting such suit. Otherwise the purchaser is at the mercy of the seller in cases where possession does not accompany the conveyance, or is compelled to obtain the possession at his own expense and costs, and that, too, in the very teeth of the covenants in the deed.”
We refrain from quoting from the other eases, but will only refer the reader to them and to those therein cited.
In view of what has been said it follows that the judgment should be, and it accordingly is, reversed, and the cause is remanded to the district court of Salt Lake county with directions to grant the plaintiff a new trial and to proceed with the ease in accordance.with the views herein expressed; plaintiff to recover costs on appeal.