151 N.Y.S. 234 | N.Y. App. Div. | 1914
This action is to recover damages by grantee against the legal representatives of his grantors for a breach of a covenant of seizin. The grantors covenanted that they “are seized of the said premises in fee simple, and have good right to convey the same.” Subsequent to the conveyance the'grantee contracted to sell the premises to Schaefer, who refused to take title, in that it was unmarketable, and brought an action for the money paid on account of the contract. It finally was determined in that action that the said grantee did not have title to a part of the premises. (Schaefer v. Hilliker, 140 App. Div. 173; affd., 206 N. Y. 708.) The consequent judgment was paid. These defendants had notice of the action
The point often urged in many of the cases, that it is inequitable that the grantee should have the land and the consideration as well, is answered in Parker v. Brown (supra, 188).
It is contended that the court erred in the rule of damages relevant to the consideration. When the learned counsel for the defendants addressed a question which correctly stated the rule, the court did make a suggestion which, if adopted, is within the discussion in Hunt v. Raplee (44 Hun, 149,155), but when the counsel objected the court said to counsel, “Take it your way,” and, moreover, I think that the wording of the conclusion in the decision indicates that the court observed the rule.
The judgment is modified in accordance with the terms of this opinion, the interest upon the item of $1,200 is limited to a period of six years from May 1, 1905, and as so modified the judgment is affirmed, without the costs of this appeal.
Thomas, Stapleton and Putnam, JJ., concurred; Carr, J., not voting.
Judgment modified in accordance with opinion, and as so modified affirmed, without costs of this appeal.