24 Ga. 533 | Ga. | 1858
Lead Opinion
By the Court delivering the opinion.
In Harwell and another vs. Fitts, (20 Ga. Rep. 723,) this Court held that the recital in a deed, as to the consideration money, was inquirable into in a Court of law, as between the original parties. Indeed this proposition is not disputed by counsel for the plaintiff in error.
This being so, how is the subsequent conveyancee entitled to any greater privileges than Fife, the immediate feoffee of Gordon ? The plaintiff can derive no benefit from the bond of indemnity taken by Gordon, for his own security. Gordon sold the land for an inconsiderable sum, owing, no doubt, to the defect in the title, and took the bond of his vendee to save him harmless. This bond can in no wise inure to the benefit of the plaintiff’s intestate.
Actual fraud is not pretended in this case. It does not go apon that idea. The truth is, Fife, the only person to whom Mrs. Martin looked for damages, is insolvent. . She may írnever'have seen the deed from Gordon to Fife. Could it be made to appear, either at law or in equity, that Gordon and Fife combined to cheat Mrs. Martin, the result would I ave been different. The facts upon the record warrant no such conclusion.'
The plaintiff must be content then to recover the actual price paid for the land, with interest thereon, and no more: that being the measure of damages for the breach of Gordon’s warranty of title.
Judgment affirmed.
Concurrence Opinion
concurring,
Gordon sold and made a warranty to Fife, and Fife sold •and made a warranty to Mrs. Martin. Gordon had no title to the land. Did the warranty pass to Mrs. Wardlaw?
“ In the early case of Noke vs. Awder (Cro. Eliz. 417,) John, lining had made a lease for years to Awder, the defendant, who conveyed it to one Abel, and covenanted that he and his assigns should peaceably enjoy it withoutinterruption. From Abel the lease came by assignment to the plaintiff, who, being ousted by one Robert King, brought an action upon the covenant The case was on the point of being adjudged fojc
This case has been repeatedly followed by the English Courts down to this day. Andrew vs. Pearce. 4 Bas. & Pul. 162, Whittin vs. Peacock, 2 Bingham N. C. 411; Pargeler vs. Harris, 7 C. B., 708; Green vs. James, 6 Mees. & W. 656; Webb vs. Russell, 3 Term R. 393.
It lias not been followed by the Courts of New York, ox those of Massachusetts, or those of some of the other States of the United States; but those Courts, if one may judge from the face of their decisions, seem rather to make the law yield Jo the case, than the case to the law. Rawle Cov. 394, el seq. The power to do this, is not given to any Court of this State.
The English cases, I think, speak the law of Georgia.
If they do, then the plaintiff' got more in the judge’s charge than he was entitled to. Gordon having no title when he made the warranty to Fife, the warranty did not pass from. Fife to his assignee, Mrs. Wardlaw; and, consequently, 8. right of action on it never vested in her, and Martin, her subsequent husband, could not be entitled to recover anything from Gordon, yet, the Court told the jury, that they might find as much as one hundred dollars for him.
Again, I am very much inclined to think that the bond, given by Fife to Gordon, operated as a release of Gordon from his covenant. This bond was made before Mrs. Wardlaw purchased. If the bond had been a release, it would, according to Middlemore vs. Goodale (Cro. Car. 503,) have extin
Dissenting Opinion
dissenting.
The judgment of the Court below is affirmed by a majority of this Court. I dissent from the judgment of affirmance.
The plaintiff’s intestate purchased of John Fife a tract of land and took his deed warranting the title. John Fife purchased of Alexander J. Gordon, the defendant, and the consideration expressed in the deed was five hundred dollars. The defendant’s intestate was sued for the land and evicted. The defendant was notified of the suit and called on to defend. The present suit is against Alexander J. Gordon, as a remote warrantor. The plaintiff on the trial offered and read in evidence the ab we named deeds, which contained the usual clauses of warranty of title. He read in evidence also, the record of the suit against his intestate for the money of the land, and the notice to defendant, and closed his cause.
The defendant then proposed to prove by Benjamin F. McDaniel, that though the deed from Gordon to Fife recited that the consideration which he paid for the land was five hundred dollars, yet in truth it was only one hundred dollars. The plaintiff objected to the testimony as inadmissible against a bona fide purchaser without notice. The Court ad-* mitted the evidence and the plaintiff excepted.
A covenant of warranty runs with the land, and though (the words “and assigns” be omitted in the warranty the remote grantee may sue in his own name. Leary vs. Durham, 4 Ga. 603; Redwin vs. Brown et al., 6 Ga. Rep. 317, 318. The plaintiff’s intestate was the assignee, therefore, of the
Down to the period of our revolution and long after, the rule of evidence of the English Courts admitted no evidence to add to, vary or contradict the terms of a deed, 1 Phillips Evidence, 548. This rule extends to the consideration. Baker vs. Dewey, 1 Barnwell & Cresbull, 704. The case of The King vs. The Inhabitants of Scammenden, 3 Tenn. Rep. 474, is an authority for the contrary doctrine. But the authorities referred to by Lord Kenyon, do not support him, and that case ■has not been followed in England The American authorities have relaxed the rule if not destroyed it, and seem to admit very liberally, evidence of additional consideration of the sort expressed in the deed, or what consideration was paid, when the deed states that there was a consideration, but does not express what it was, &c. But this is not done when is
When the witness McDaniel was sworn, he testified, that Fife paid Gordon one hundred dollars only for the land, and it was understood at the time, that there was a dispute about the title, and F-ife executed to Gordon his bond for $500, to indemnify him against loss for putting the consideration of $500 in the deed. This is the manifest understanding of the case from the imperfect record before us. When the case was closed, the counsel for the plaintiff requested the Court, m writing, to charge the jury that if Gordon received #100 in money for the land, and Fife’s bond of indemnity against loss on account of his warranty, and for this reason executed his deed and warranty for $500, the plaintiff was entitled to recover the $500 and that the defendant must rely on his indemnity bond against Fife. The Court refused to give this charge, and counsel for plaintiff excepted.
I think the charge ought to . have been given. Upon the face of Gordon’s contract or covenant he was liable at law for the #500, and at least four years interest. If he can be relieved either in a Court of Law or Chancery, from liability ■to that extent, it must be by reason of some fact or circumstance which entitles him inequity to reduce its amount; and Courts have allowed evidence simply of the amount of the consideration actually received by him, if less than that expressed in his deed, to be given in evidence, and to have the effect of fixing the measure of his vendee’s redress. This is regarded as an equity in his favor. But if the amount of consideration specified in the deed, be inserted for a sinister object, as to entrap a purchaser into- confidence in a bad title, what becomes of the equity ? In this case the title was disputed, and the result shows that it was no title. The consideration of #500, four hundred dollars more than the price received for the land, was deliberately and by contract inserted In the deed, and the defendant knowing the immorality of the act, took care to require a bond to indemnify him against