Eaton v. Lyman

24 Wis. 438 | Wis. | 1869

DxxoN, C. J.

The learned judge of the circuit court erred in his conclusion of law that the plaintiff in error, who was the plaintiff below, was entitled to recover only nominal damages; and that error was the necessary result of the erroneous conclusion of law which preceded it, which was, that the assignment by Frickles to Baton of his (Prickles’) right of action upon the covenants contained in the defendant Lyman) s deed was not equivalent to the payment, by Prickles to Baton, of the consideration money agreed upon between them for the land when Baton sold and conveyed it to Prickles, after the judgment in his favor in ejectment. Prickles was in possession of the land, claiming title under the deed to him from Lyman. Baton, claiming to be the owner by paramount title, sued Prickles, and succeeded in ousting him. Immediately after eviction, Prickles pur chased the land of Baton, and, in consideration thereof, transferred to him his right of action upon the covenants in Lyman) s deed. If Prickles had remained out of possession, or had not repurchased the land from, and transferred his right of action to, Baton, his measure of damages in an.action for the breach of the covenants sued upon (which are those of warranty and against incumbrances), would have been the consideration named in Lyman) s deed, and interest upon the same. The measure of damages in the action by Baton, as assignee, must be the same, with this difference only, that he can recover no more than the consideration or price, with interest, agreed upon between him and Prickles for the land, with perhaps the costs of the ejectment suit, paid by Frickles, added. In no event can the recovery exceed tlie consideration paid by Frickles to Lyman for the land, with interest; and since Frickles has succeeded in buying in the outstanding title of Baton, the recovery must be limited to such sum, less than the consideration money and interest, as Frickles may necessarily have expended in procuring such title. In a case like this, where the right of action upon the covenants was assigned in consideration of the conveyance of the outstanding title, the sum, with interest, fixed by the parties as the value of the title, would constitute the measure of the recovery, with, perhaps,, such additional sums as the covenantee might himself have recovered if the action had been brought in his own name.

By the Court. — Judgment reversed, and a new trial awarded.