10 S.C. 8 | S.C. | 1878
The opinion of the Court was delivered by
On the 24th of March, 1851, John Caldwell, the defendant’s testator, in consideration of five thousand dollars paid to him by one Samuel Pearse, conveyed to said Pearse a certain lot of land in the city of Columbia, with full covenants of warranty. On the 27th of August, 1869, Miller, as the Clerk of the Court of Common Pleas, under an order passed in proper proceedings for the settlement of the estate of Samuel Pearse, in the Court of Equity and Court of Common Pleas, conveyed, without warranty, the same lot to the plaintiffs for the consideration of four thousand dollars. On the 12th of May, 1873, Olivia R. McGowan and others recovered by title paramount this lot from the plaintiffs in an action of which the defendant was duly notified. This action is now brought on Caldwell’s warranty, and the plaintiffs claim that the true measure of damages is the amount of the purchase money paid to Caldwell, with interest thereon from the date of his alienation, together with the costs of the action of ejectment brought by the McGowans.
The defendant, on the other hand, contends that the measure of damage is the amount of the purchase money contracted to be paid by the plaintiffs, with interest from the date of the alienation to them, together with the costs of the action of ejectment. The defendant also claims that he has liquidated the damages to which the plaintiffs were entitled to a partial extent, and, therefore, that they are only entitled to recover the balance, in support of which
“$1,500. This bond is this day satisfied in full by the payment of fifteen hundred dollars by T. J. Robertson, executor John Caldwell, who was the grantor and warrantor to Samuel Pearse of the land which was the consideration of this bond, the same being so received in accordance with the order of Court of date March 10th, 1876.
“W. S. MONTEITH,
“ Attorney for D. B. Miller, Clerk, and Solicitor of Estate.
“MARCH 11th, 1876.”
Both parties appeal from the judgment of the Circuit Court on grounds which are distinctly set out in the “ case ” as presented here, to which reference must be had for a detailed statement of the facts and of the grounds upon which each of the parties appeal. The questions raised by the appeal are: First. What is the measure of the defendant’s liability? Second. Whether any offsets or payments are to be allowed defendant; and if so, how much ?
As to the first question, it may be stated in a more precise form, thus: Is the defendant liable for the amount of the purchase money ($5,000) mentioned in the deed from Caldwell to Pearse, or is he liable only for the amount of the purchase money ($4,000) mentioned in the deed from Miller, Clerk, to the plaintiff? It is conceded, and very properly conceded, that Caldwell’s warranty runs with the land, and, therefore, that his estate is liable to respond in damages to the plaintiffs, who have been ejected by paramount title, and the only question is as to the measure of those damages.
The question as to what should be the proper measures of damages in an action like this is one which has troubled the Courts of this State from the commencement of our judicial history down to the time when the Legislature took the matter in hand and passed an Act which it was supposed, vainly as the event has proved, would finally settle the controversy. In the earlier cases our Courts
When we recollect that this is an action upon a contract, and that it is upon the contract of Caldwell and not that of Miller, it would seem necessarily to follow that we must look alone to Caldwell’s contract for all its terms, and hence that the measure of damages would be the amount mentioned in Caldwell’s deed and not the amount mentioned in Miller’s deed. It is difficult for us to understand how, in searching for tlie measure of Caldwell’s liability, we can go outside of the contract which he has made. Again, we presume there could be no doubt but that if Pearse had been the party evicted and had brought this action against Caldwell, that the measure of damages would have been the amount of the purchase
What he really loses is the land. He may have been fortunate enough to buy it under circumstances which enabled him to procure it at a price much below its real value, or he may have greatly added to the value of it- since his purchase, or it may have been given to him by a relative. We are, therefore, of opinion that “ the true measure of damages” in this case is the amount of the pur
As to the second question, we are at a loss to perceive how the payment of one thousand dollars to the McGowans or the extin-guishment of the bond of the plaintiffs to Miller can be regarded as either offsets to or payments on the claim of,the plaintiffs under Caldwell’s warranty. The rule of law is that “ no man can by a voluntary payment of the debt of another make himself that man’s creditor.” — Richardson ads. McCrady, 1 Tr. Con. Rep., 473. Or, as it is stated in Lewis vs. Lewis, 3 Strob., 532: “No one by paying an account against another can maintain an action for the amount without a promise, express or implied, of the original debtor.” And as it is said by Lord Kenyon in Exall vs. Partridge, (8 T. R., 310,) it is an entire mistake to suppose “ that when one person is benefited by the payment of money by another, the law raises an assumpsit against the former; for, as is said in the same case by Lawrence, J., “one person cannot by a voluntary payment raise an assumpsit against another.” Test this case by these propositions of law, and take first the money paid by defendant to the attorneys of the McGowans in satisfaction of their claim for mesne profits. It will be remembered that this payment was made March 2, 1876, nearly three years after the judgment in the action of ejectment, in which no damages were recovered against the plaintiffs.; there was, therefore, then no debt due by the plaintiffs, for, as the Circuit Judge very properly says: “The recovery by the owners of the fee in that action concluded any further claim against these plaintiffs for rents and profits. — Sumter vs. Lehre, 1 Tr. Con. Rep., 102; Colman vs. Parish, 1 McC., 264. There was, therefore, nothing due by them at the time of such payment.”
In addition to this, we may say that there was no evidence whatever showing the value of the mesne profits during the period for which the plaintiffs had possession of the premises, and hence this was not only a voluntary payment of what was not then a debt due by the plaintiffs, but, for aught that appears, may have been a payment of much more than the plaintiffs ever were liable for. Nor do we see any propriety in setting off, as the Referee has done, this payment against the interest which accrued on the purchase money from the time of Caldwell’s sale to Pearse to the time of the purchase by the plaintiffs; for, besides the fact that the one very largely
As to the effect of the extinguishment of the plaintiffs’ bond to Miller, it must be borne in mind that the defendant did not purchase the bond and take an assignment of it, but by his payment he cancelled the bond. How can this give him any claim against the plaintiffs any more than if he had'voluntarily extinguished a note for a horse or any other debt due by the plaintiffs? It may have benefited the plaintiffs, but that, as we have seen, in the opinion of Lord Kenyon and of Lawrence, J., supra, gave him no legal claim against the plaintiffs. He was under no sort of obligation to pay this debt, and was under no compulsion whatever so to do. It was a purely voluntary act, without consultation, with a request from the plaintiffs, — indeed, so far as appears, without even their knowledge. The right of the plaintiffs to recover in this action in no wise depended upon the payment of this bond. In fact, if the holder of the bond had entirely released the plaintiffs from all liability on the bond, their right to bring this action would not have been in the least affected thereby. Nor did the amount of their recovery — the measure of their damages — depend upon the amount of money they may have paid out or were liable for, or whether
Motion granted.