13 Ky. 118 | Ky. Ct. App. | 1823
Opinion of the Court.
Charles Cummins and William Kennedy, op the 25th of April 1783, agreed to exchange lands. Cummins bound himself to convey to Kennedy four hundred acres of land in the then district of Kentucky, in the county of idncoln, on the waters of Harrod’s creek; and Kennedy bound himself to convey to Cummins eight hundred acres of land, of equal quality, on the waters of Lickt ing, on the south side of the stream. Cummins obtained, by virtue of his pre-emption warrant, only two hup-
On the trial of the cause, the question presented itself, what was the proper criterion of damages recoverable? The plaintiff in that court contended, that the value of the 248 1 — 4 acres of land in Lincoln, on the 13th of November 1802, the day when conveyances were exchanged, with interest and costs of eviction, wa's the proper measure of damages; or if that was not the proper measure, that the value of 49 G 1-2 acres in Bourbon, described ia tljie deed declared on, at fye date
The court reserved these questions, and the jury, by consent, found conditional verdicts, subject to the opinion of the court on the proper measure of damages. The jury accordingly found for the plaintiff below, and assessed the value of both tracts exchanged, on the 25th of April 1783, with interest, &c. tobe $1,027 6 1-2 cents; but if the 248 1-4 acres in Lincoln, on the 13 th of November 1802, with interest, was the proper measure, they assessed the damages to $5,358 53 1-2 cents; They also assessed the value of the 496 1-2 acres in Bourbon, on the said last named day, with its interest, to be $3,529 25 cents. The court, after time for deliberation, gave judgment for the smallest sum, to wit, for the value of the land given in exchange by Cum-mins, on the 25th of April 1783. To reverse this judgment, and to obtain judgment for one of the other sums found by the conditional verdict, Cummins, the plaintiff below; has prosecuted this writ of error. His right to a larger judgment is resisted here, not only on the ground that the measure of damages allowed is proper, if he is entitled to any; but also, that the record shows, by questions raised in his favor and ruled against him, that the plaintiff is entitled to nothing, or at ail events, not so great a recovery as he has already obtained. It will, therefore, be proper for us to investigate these previous questions; for if the plaintiff has gotten a Judgment for something, when he was entitled to less, ot to nothing, he ought not to be allowed to complain; and if he is wronged by the judgment, and it must for that cause be reversed, it is the settled rule of this court,to go back to the point where the first error occurred,- and there commence the correction.
1. The first of these preliminary questions relied upon, arises out of a plea of the defendant, which was overruled on demurrer. This plea alleged that -this suit was founded and brought on account of a contract of the testator, William Kennedy, and that it had been
The design of this plea must have been to rely on the fifth section of an act passed February 9thv 1819, 1 Dig. L. K. 537, limiting the time of bringing suits against executors and administrators. But this act expressly confines itself to suits brought on contracts made by the testator or intestate. This contract, al-. though it arose out of an executory contract made by the decedent, yet is made the contract of the administrator himself, by his own act. He executed the conveyance, and personally and individually bound himself, in a clause of warranty, as far as the assets^ of his testator extended. It would, then, have ho force against the distributees, as such. It is a covenant at its creation, subject to no limitation by statute; and to give the act in question such a construction as to bear upon it, would virtually annul the contract of the administrator, and change its obligations. Such contracts are not Within-- either the letter or spirit of the act, and the court below, therefore, did right in overruling the plea.
The remaining questions which were made in the court below, contesting the plaintiff’s right to a recovery, arise out of motions to exclude the whole evidence, or to instruct the jury as in case of a nonsuit.
,2. According to principles heretofore recognized in this court, a remote grantee, in the case of eviction, has a right, by virtue of the several transfers or deeds, to commence suit against the first warrantor, his warranty being a covenant which runs with the land, and the right of action, in case of a breach, is held by the remote grantee. In this situation stood Robert E. Cum-mins, the now plaintiff. But as the conveyance to him from Charles Cummins does not contain a clause of general warranty, but only a special clause, warranting against the said Charles and his heirs, and also recites a small consideration of only $500, it may be contended, that he has no right to recover, or at all events only his purchase money, with its interest; and these ques
On the first of these questions; to wit, the lack of a clause of general warranty between Charles and Robert E. Cummins, it does not thence follow, that ©n a .breach of the warranty at the common law, Robert E. Cummins, the plaintiff, could not, when impleaded for the land, have vouched the first warrantor, or have brought his writ of warrantia charla. The rule is, that all persons named in the deed, such as heirs and assigns, could vouch, or bring the writ, and in some cases even where not named; and generally, all privies in estate had the like remedy. The deed of the defendant in this instance warranted the land “ to him, bis heirs and assignsand it was not necessary that the grantee should bind himself in a like warranty, to constitute Robert E. Cummins an assignee. . The deed contains-no stipulation against his standing in that capacity, and passes the estate as completely as if a general warranty was annexed; and therefore he may have his action of covenant, which we have adopted, since vouchers are taken away, and have applied to cases which could be relieved by the ancient remedy. Many analogous cases to the present, are found in the authorities relative to-the ancient remedy. For instance, if the father be en-feoffed with warranty to him and to his heirs, and he en-feoff his eldest son with warranty, and dietb, the law gives the son advantage of the warranty made to his father, although by act of law the warranty between the father and son is extinct. Again, if aman makes a-feoffment in fee, with warranty, to him, his heirs and . assigns, by deed, and the feoffee enfeoffeth another by parol, the second feoffee shall vouch or have a warranties, charla, as assignee, although he has no deed of the assignment; because the deed comprehending the warranty doth extend to the assignee of the land, and he is a sufficient assignee, though he hath no deed. 1 Inst. 384 b. 385 b. Bacon’s Abr. title Warranty, letter N. This latter case is more strong than the present, and fully justifies the right of the present plaintiff, as as-signee of the covenant, to recover of the defendant, and shows that he has the right to take advantage of the first warranty, notwithstanding his immediate deed contains no similar clause.
As to a less consideration being expressed in his deed, less need be said. The.fi&rties must be presumed to have known the law, andTpe gave the sum, risking the holding of the land and his recourse on the defendant, if he failed to hold it. The sum paid by him does not affect the extent of the covenant of the defendant. He could be botmd for no more, by any larger consideration passing between Charles and Robert E. Cummins; nor could his liability be diminished, by a less consideration. The main question is, has Robert E. Cummins, the plaintiff, a right to stand in the place óf Charles; and take advantage of the covenant? This we have already answered in the affirmative, and it follows, that he has the legal right to make the defendant responsible-to the extent of Ms undertaking.
The next and most material objection relied on, to the recovery of the plaintiff, is, that he has shown no legal eviction of the land-conveyed to him, and of course there is no breach of the covenant. •
3. The eviction, or rather that which the plaintiff relies on as a substitute for an eviction, is the following: The land conveyed to him, to wit the 496 1-2 acres in Bourbon, was taken possession of by sqndry persons, against whom, relying upon his title, he brought an ejectment in the Bourbon circuit court. These settlers set up against him and proved a grant for the whole land, elder in date than that of William Kennedy, conveyed by the defendant and Beall as his representatives, and thereby defeated his recovery. This record of the Bourbon circuit court he has set out in his declaration, and alleged a paramount and elder title as the cause of his defeat; and he exhibited that record in evidence, and proved the actual existence of that elder title on the ground, or this trial, and relies on it as equivalent to an eviction by title paramount; and the question is, can this warrant his recovery?
In solving this question, we cannot expect much light from ancient authorities. According to them, he who was impleaded must vouch his warrantor, and at the close of the transaction, if he lost, recover other lands of equal value against his warrantor, or lose his re-, course. According to our rules, if h'e has possession, and another brings his action and evicts him, he sues on his covenant, and on proving that he gave notice of the action of eviction against him. to his warrantor, s$,
We are aware that the supreme court of New-York has decided that a legal eviction is necessary'to support a breach of warranty. See Greenby vs. Wilcocks, 2 John. 1; Folliard vs. Wallace, ibid 395; Kent vs. Welch, 7 John. 258; Sedgwick vs. Hollenback, ibid 376. This doctrine we are not disposed to contest; and it ought perhaps to apply to all cases where the possession was actually de-. livered with the deed. But that court has never decided that a defeat in pursuing the possession by legal process, where the parties are reversed, would not be
The inquiry then remains, whether the court’adopted the proper criterion in rendering the judgment on the conditional verdict?
4. The general rule, settled by a current of authorities, is, that as the conveyance completes the sale, the value of the land conveyed, at the date of the convey-anee, with interest and costs, forms the criterion of damages; and also, that the price stipulated, is the best evidence of that value. And where the parties have shown that price in the conveyance, it wpuld not perhaps be going too far, to say that they ought to be concluded by it. Hence, if the consideration was paid long before the date of the deed, still, if it is expressed, it would fix the criterion, though the land, when conveyed, had greatly risen in value. In this case, however, the parties have shown what constituted the consideration; but still its then value is uncertain, because it consisted in land, the price of which was not fixed. It is not necessary now to say, that in every case, the parties, where the deed did not fix the price, should be confined to its date, and could, in no case, travel back and show that the consideration had passed long before, and of course was of less value; for in this case there are circumstances which show that the warranty ought to be measured by the general rule, notwithstanding the contract was made in 1783, with the testator of the defendant. The contract is modified, and does not contain as-much, when completed by conveyance, as it did in 1783; and the parties have nof only included the land in Lincoln, but also expressed one dollar as tional consideration. This may be supposed to be, and in fact may be, merely nominal; but in all siesbetween the same parties, it must be treated as real. Hence, such a consideration alone will support a deed; but if it can be impeached, and shown to be fictitious, the deed would fall, without a consideration to support.'
The judgment must, therefore, he reversed with costs, and directions given them to enter judgment according to this opinion.