270 P. 473 | Or. | 1928
This is an action to recover damages for breach of covenants of warranty.
The facts are practically undisputed in the testimony and are substantially as follows:
Defendants were the owners of lot 2 in block 2 in Laurelcrest in the City of Portland, and on the twenty-third day of March, 1923, sold the same to plaintiff subject to a mortgage of $2,200, the actual cash consideration paid being $1,932.42. The material portions of said conveyance are as follows:
"Know all men by these presents, that Cissie Tandy, married woman, and Charles Tandy, her husband of Portland, State of Oregon, in consideration of ten ($10.00) dollars to her paid by William Kennell and Irene J. Kennell, husband and wife, of Portland, State of Oregon, hath bargained and sold, and by these presents doth grant, bargain, sell and convey unto said William Kennell and Irene J. Kennell, husband and wife, their heirs and assigns, all the following bounded and described real property situated *529 in the county of Multnomah and state of Oregon, lot two (2) block (two) Laurelcrest, in the city of Portland, Multnomah County, Oregon, together with all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining, and also all her estate, right, title and interest in and to the same, including dower and claim of dower.
"To have and to hold the above described and granted premises unto the said William Kennell and Irene J. Kennell, husband and wife, their heirs and assigns forever. And Cissie Tandy and Charles Tandy, husband and wife, grantors above named do covenant to and with William Kennell and Irene J. Kennell, husband and wife, the above named grantees their heirs and assigns that they are lawfully seized in fee simple of the above granted premises, that the above granted premises are free from all incumbrances, excepted bonded liens for two hundred and seventeen dollars and fifty-eight cents ($217.58) and a first mortgage for two thousand two hundred dollars in favor of the Portland Trust Co., and that they will and their heirs, executors and administrators, shall warrant and forever defend the above granted premises, and every part and parcel thereof, against the lawful claims and demands of all persons whomsoever."
On said lot 2 was a house, which in fact extended about twenty inches over the boundary line between lot 2 and lot 1, which last-mentioned lot was owned by other parties. At the time of the sale and conveyance both parties were ignorant of the fact that the house encroached upon the adjoining lot; but this being later discovered the owners of lot 1 demanded that that portion of the building which encroached upon lot 1 should be removed therefrom and far enough over on lot 2 to comply with the building restrictions prescribed by the ordinances of the City of Portland, *530 and threatened to bring an action to compel such removal.
Plaintiffs finding that it would cost from $650 to $800 to remove the encroaching portion of the house, compromised the matter by purchasing a strip from lot 2 upon which the encroachment projected, paying therefor the sum of $650, which was the smallest sum that the owners would take for said strip and apparently it was a smaller sum than it would have cost to remove the encroaching portion of the building. They now bring this action upon the warranty and covenant against encumbrances to recover the sum of $650 paid as above recited. AFFIRMED.
There is no question of bad faith in this case. The defendants thought they were selling and the plaintiffs thought they were buying a lot with a house standing upon it. In other words, when in their deed they spoke of the "tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining," these words must be referred to the only "tenement" on the property, the house, and anything that interfered with their enjoyment of the house constituted an encumbrance. Counsel for defendants have cited many technical definitions of the word "encumbrance" and "appurtenances," but none of them seem exactly to fit the peculiar circumstances of this case. Singular as it may seem, *531
we have found only two cases exactly parallel to the case at bar, and as the first of them seems an eminently just solution of this controversy, we quote from it. The case referred to isFehlhaber v. Fehlhaber,
"The encroachment of the building upon the adjacent land created a right in the owner of the adjacent land, which, while it did not interfere with the passage of the fee, did impair the value of the property conveyed by the defendant to the plaintiff. Under the circumstances disclosed by the record, the encroachment was material and substantial. It was, therefore, an encumbrance, and as such within the terms of the covenant. The existence of the incumbrance caused damage to the plaintiff, and the expense which was incurred in its removal may properly be recovered as damages, provided that damages recoverable shall not exceed the purchase price, with interest. Reeves on Real Property, vol. 2, p. 1529."
The case above cited is not, as urged by counsel for defendants, a hastily written and unsupported decision. It is cited with approval in Gamorsil Realty Corp. v. Graef et al.,
We are of the opinion that the encroachment constituted an encumbrance and that the plaintiffs are entitled to recover the amount necessarily paid to remove it. The judgment is affirmed.
AFFIRMED.
RAND, C.J., and ROSSMAN and COSHOW, JJ., concur. *532