61 Fla. 207 | Fla. | 1911
The plaintiff in error, as plaintiff in the court below, instituted an action at law against the defendant in error in which the following declaration was filed:
“And now comes E. O. Flood, the plaintiff, by Wall & McKay, his attorneys, and complains of John A. Graham, the defendant.
And the said plaintiff avers that at the time of the delivery of said deed in the County of Hillsborough, State of Florida, as aforesaid, said lands were not free and discharged from all liens, incumbrances of every kind whatsoever, but the same were subject to a right in the Florida Land & Improvement Company to enter upon said lands and enjoy the benefit of the oil and asphalt rights therein for a period of Ten (10) years from the 15th day of August, A; D. 1905.
And the said plaintiff further avers tlial' he had con-
And the plaintiff further avers that by reason of the existence of said right to the oil and asphalt in said lands in the Florida Land & Improvement Company, as aforesaid, there was a breach of the defendant’s warranty of said lands, as being free and discharged of all liens and incumbrances, and he was damaged thereby in the sum of Sixteen Hundred Eighty ($1680.00) Dollars, and he has also been deprived of the interest thereon from the 20th day of June, A. D. 1908, and he therefore brings suit against said defendant, and claims damages in the sum of Five Thousand ($5000.00) Dollars.”
The covenants in the deed upon which the action is based are as follows, a certified copy of such deed being attached to and made a part of the declaration:
“And the said parties of the first part for themselves and their heirs, executors and administrators do covenant and agree with the said party of the second part, his heirs, executors, administrators and assigns, that they are lawfully seized of the said premises in fee simple, and have good right to sell and convey the same to the said party of the second part; that the said premises are free and discharged from all taxes, tax titles or certifi*210 cates, judgments, mechanics’ liens and encumbrances of any kind whatsoever, and that they will, and their heirs shall, warrant and defend the same to the said party of’ the second part, his heirs and assigns forever, against the lawful claims and demands of all persons.”
To this declaration the defendant filed the following motion:
“Now comes the defendant in the above entitled cause and moves the court to strike from the declaration of the plaintiff that paragraph on page two beginning with the words “And the said plaintiff further avers” down to the words “per acre,” for the reason that the allegation is immaterial, irrelevant to the plaintiff’s cause of action and tends to embarrass a fair trial of said cause for the reason that the damage claimed in said paragraph is not proper damage for a breach of the defendants covenants, the true measure of damages being the difference between the value of the lands without the reservations of oil and asphalt rights and the value of the lands with said rights existing.”
The defendant also interposed the following demurrer:
“Now comes the defendant in the above entitled cause, and says that the declaration filed by the plaintiff is bad in substance and in law, and demurs thereto.
For good and substantial matters of law to be argued to the court, the defendant states the following:
1st. That the reservations of the oil and asphalt rights by the Florida Land & Improvement Company does not constitute a breach of the covenants of warranty.
2nd. That the declaration fails to allege that there was any oil or asphalt on the land and tenements described.
3rd. Even if there was any oil or asphalt rights on the lands and the reservation thereof constituted a breach of the defendant’s covenants against encumbrances, the
The court granted the motion and sustained the demurrer, and, the plaintiff declining to amend, entered final judgment against the plaintiff. ■ The correctness of these rulings is challenged by a writ of error, which the plaintiff had issued to such judgment.
The assignments of error may be considered together, since practically they raise the same question and present the same point for determination. Is the covenant in the deed in question, “that the said premises are free and discharged from all taxes, tax titles or certificates, judgments, mechanics’ liens and encumbrances of any kind whatsoever,” sufficiently broad to warrant and support the action alleged in the declaration? In VanNess v. Royal Phosphate Co., 60 Fla. 284, 53 South Rep. 381, we had occasion to consider somewhat the question as to what constitutes incumbrances, and while we fully approve of what is said therein it is not decisive of the question presented in the instant case, though it will prove helpful. In the cited case it will be observed that the deed in question contained only one covenant, which is copied in the opinion, and we were called upon to construe the same and to determine whether such covenant gave the grantee in the deed a right of action against the grantor for damages because of the existence of a railroad right of way and of the roadbed and track upon the lands therein described at the time the same were conveyed. This question we answered in the negative and in so doing had occasion to construe section 2450 of the General Statutes of 1906, all of which clearly appears in the opinion. In
“It is also claimed by the plaintiff in error, that the interest in the coal and coal privileges acquired by Wilkinson under his deed does not constitute an incumbrance within, the meaning of this covenant.
The deed purports to ‘give, grant, bargain, sell and convey’ all the iron ore and coal upon the premises, together with the privilege of entering on the lands, excavating and mining for coal and iron ore, with the further privilege of roads and ways. A vested interest in a part of the land, and an easement in the balance, accrued to Wilkinson upon the delivery of the deed; and although it may be true that the title to the coals in place vested absolutely in the purchaser, yet from the nature of the property the only valuable or profitable exercise of the rights of ownership consisted in the right to remove the
The right or interest thus conveyed to Wilkinson, we think, fairly comes within the most approved definition of an incumbrance within the scope and meaning of this covenant, namely; ‘every right to or interest in the land, which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.’ Rawle on Gov. 95, and cases cited. Within the authority of decided cases the right to cut and remove growing trees is an incumbrance. 22 Pick. 447; 97 Mass. 195; 6 Allen, 420. A right of dower either inchoate or consummate. 3 Zabr. 260; 8 Ala. 373; 2 Greenl. 26; 49 N. H. 549. A private way. 46 Penn. St. 229; 2 Allen, 598; 15 Pick. 68; 5 Conn. 497. A lease for years. 2 Speers, 649. A contract of sale. 1 Rawle, 382. A right of way for railroad. 24 Iowa, 69, etc.
The demurrer to the petition was properly overruled.”
In addition to the authorities therein cited, also see Cathcart v. Bowman, 5 Pa. St. 317; People’s Savings Bank Co. v. Parisette, 68 Ohio St. 450, 67 N. E. Rep. 896, 96 Am. St. Rep. 672; Adams v. Reed, 11 Utah 480, 40 Pac. Rep. 720; Consumers’ Gas Trust Co. v. Littler, 162 Ind. 320, 70 N. E. Rep. 363, though it is not necessary for us to commit ourselves to all that is said in the cited authorities, and we do not wish to be understood as so doing. We would also refer to Rawle on Covenants (4th ed.) pages 94 and 113, and 2 Devlin on Deeds (2nd ed.) sections 906 and 907. As to what may subsequently develop in the case we have no means of knowing, but we are clear, in the light of the authorities, that the allega