155 Ill. 123 | Ill. | 1895
delivered the opinion of the court:
Appellee, by his written agreement, covenanted with appellants that he would convey to them or their assigns, by a good and sufficient warranty deed, a good title to the land in the agreement described. A compliance with that covenant would require appellee to convey to appellants or their assigns a title free from incumbrances. (Thompson v. Shoemaker, 68 Ill. 256; Morgan v. Smith, 11 id. 194; Brown v. Cannon, 5 Gilm. 174; Carpenter v. Bailey, 17 Wend. 244.) A right of dower is an incumbrance, within the terms of that covenant, and it is immaterial whether that right of dower is inchoate or consummate. Russ v. Perry, 49 N. H. 547; Carter v. Denman’s Exrs. 3 Zabr. 260; Porter v. Noyer, 2 Greenl. 22; Jones v. Gardner, 10 J. R. 266; Prescott v. Trueman, 4 Mass. 627; Walker’s Admr. v. Deaver, 79 Mo. 664; Bigelow v. Hubbard, 97 Mass. 195; Shearer v. Ranger, 22 Pick. 447.
A right exists in the covenantee to remove an incumbrance where it is certain in amount, and he may pay off and discharge the same, and where he does so, and his deed contains a covenant against incumbrances, he may set off such sum as it was fairly and reason ably necessary to pay for such purpose, against the amount due for the purchase money of the premises. Grant v. Tallman, 20 N. Y. 141; Willets v. Burgess, 34 Ill. 494; Sargeant v. Kellogg, 5 Gilm. 273; Edwards v. Todd, 1 Scam. 462; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15 ; Nichols v. Buckells, 3 Scam. 298.
Whilst there is some conflict in the decisions of thex various States on the question as to whether the right of recovery or set-off by a grantee, with covenants against incumbrances in his deed, exists to the extent of the sum actually paid by him, the great weight of authority sustains the view that the burden of proof is on such grantee, not only to show the amount paid, but that such amount was the reasonable and fair value of the interest acquired. (Grant v. Tallman, supra; Guthrie v. Russell, 46 Iowa, 269 ; Farnum v. Peterson, Ill Mass. 148 ; City of St. Louis v. Bissell, 46 Mo. 157; Anderson v. Knox, 20 Ala. 156; Pate v. Nutehill, 23 Ark. 590; Devlin on Deeds, secs. 918, 919.)' A limitation always exists, however, as to the amount recoverable for a breach of the covenant against incumbrances, as the amount recoverable is never allowed to exceed the amount of the purchase money, with interest thereon. (Willets v. Burgess, supra; Brady v. Spurck, 27 Ill. 478.) Where the breach of such covenant results from a mortgage, judgment or attachment, or other incumbrance that the grantor has a right to remove, but slight embarrassment can result in determining the amount that should fairly and reasonably be paid to remove the same. But where it is of that character that it is not removable as a matter of right, at the option of the parties to the agreement, such as dower and the like, the law provides a remedy by damages to be awarded for the proximate results of such breach. Such damage is not to be determined by the' action of one party to the covenant, and the proof of damage must be made in accordance with legal principles, and the burden is on the party asserting such damage, where more than merely nominal damage is sought to be recovered. There is no proof in this record as to the damage sustained by reason of a breach of covenant, further than the mere fact as to the amount paid for the execution of the deed conveying the inchoate right of dower. That evidence was not sufficient to authorize a set-off to be allowed by the trial court.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Bailey, J., dissenting.