31 N.Y.S. 1049 | N.Y. Sup. Ct. | 1895
Lead Opinion
The ruling of the court, that the Manchester mortgage constituted an incumbrance upon the property at the time of the conveyance from Cauldwell to this plaintiff, is in accord with the decision of the court of appeals in Landon v. Townshend, 112 N. Y. 93, 19 N. E. 424, and 129 N. Y. 169, 29 N. E. 71, because Manchester was not made a party in his official capacity, nor was it made to appear on the face of the complaint, by answer, or by the appearance of Manchester in the capacity of trustee, that the trust which he represented was intended and understood to be affected: by the suit. The trial court rightly decided, as we think, that the plaintiff was not estopped, by the judgment in the suit of Mam
Upon the question of damages, we think the plaintiff, under the evidence, was only entitled to recover nominal damages. The covenant against incumbrances was broken the instant the conveyance was made to him, because the Manchester mortgage constituted an incumbrance; but the plaintiff was not evicted because of it, nor was any proceeding taken to enforce the incumbrance during the time that the title to the property was vested in him, and he did not pay it, or pay anything on account of it, nor was he requested to. Delavergne v. Norris, 7 Johns. 358, is a leading case on that question in this state. The premises, which were conveyed by deed containing a covenant against incumbrances, were covered by several prior mortgages, which had been duly recorded, securing in the aggregate the sum of $2,000. The plaintiff paid mortgages aggregating $1,163.44 prior to the commencement of the action, leaving unpaid the sum of $835.30; and the question presented was whether he was entitled to recover the aggregate sum secured by the mortgages, or only the sum which he had paid. And the court held that as to the mortgages remaining unpaid he could only recover nominal damages, as he might never be disturbed by an effort to enforce their collection. The court stated the rule as follows:
“If the plaintiff, when he sues on a covenant against incumbrances, has, extinguished the incumbrance, he is entitled to recover the price he has paid for it; but if he has not extinguished it, but it is still an outstanding incumbrance, his damages are but nominal, for he ought not to realize the value of an incumbrance on a contingency where he may never be disturbed by it. This is the reasonable rule, for, if he was to recover the value of an outstanding mortgage, the mortgagee might still resort to the defendant on his personal obligation, and compel him to pay it; and if the purchaser feels the inconvenience of the existing incumbrances, and the hazard of waiting until he is evicted, he may go and satisfy the mortgage, and then resort to his covenant.”
In Hall v. Dean, 13 Johns. 105, the incumbrance was a judgment, which the grantee paid before commencing the action, and the court held, citing Delavergne’s Case, supra, that, the covenant being broken, the grantee was only entitled to nominal damages without discharging the incumbrance, but, having paid it, he is entitled to recover
“It is, I think, well settled that where the incumbrance has not been paid off by the purchaser of the land, and he has remained in quiet and peaceable possession of the premises, he cannot have relief against his contract to pay the purchase money, or any part of it, on the ground of defect of title. The reason is that the incumbrance may not, if let alone, ever be asserted against the purchaser, as it may be paid off or satisfied in some other way, and then it would be inequitable that any part of the purchase money- should be retained.”
In this case it may be remarked, in passing, that the incumbrance was never asserted against the plaintiff, and the evidence is that, since plaintiff was divested of his title through the foreclosure of a mortgage given by him, it has been satisfied other than by payment, in an action brought to enforce it. In Soule v. Dixon (Sup.) 1 N. Y. Supp. 697, and Barlow v. Bank, 63 N. Y. 399, the cases of Delavergne v. Norris and Hall v. Dean, supra, were cited with approval upon the proposition that a covenantee will be restricted to nominal damages if his possession has not been interfered with, unless he has paid the incumbrance. To the same effect is Sedg. Dam. (8th Ed.) 976; 2 Suth. Dam. (2d Ed.) § 622; Rawle, Cov. (4th Ed.) 288. Our attention has not been called to any case in this state in which the authority of the cases we have referred to is questioned, and the rule which they establish is that under the covenant against incumbrances, where no fraud intervenes, the grantee, where an incumbrance exists which no attempt has been made to enforce, can only recover nominal damages, unless he shall have paid the amount. This plaintiff did not pay the amount of the incumbrance. His possession was not interfered with because of its existence, and no attempt was ever made to enforce it until after his title and that
Concurrence Opinion
I concur in the result, and in the result only, of the opinion of Mr. Justice PARKER in this case. I do not think that the case of Landon v. Townshend, 112 N. Y. 93, 19 N. E. 424, and 129 N. Y. 167, 29 N. E. 71, necessarily applies to this case; and the doctrine in that case should not be extended beyond its actual requirements, as the result must, of necessity, be the unsettling of titles as to which there has heretofore been no question. The mortgage of Davies to Manchester was to him individually. He is described as a party individually. It is true that in a subsequent part of the mortgage it is declared that the mortgage is executed and delivered to Manchester as trustee for certain firms, of which Manchester’s firm is one. The habendum clause, however, is:
“To have and to hold the above-granted, bargained, and described premises, with the appurtenances, unto the said party oí the second part (Manchester), his heirs and assigns, to his and their own proper use, benefit, and behoof, forever.”
The premises were to be held by Manchester, his heirs and assigns, not his successors and assigns. In Landon v. Townshend, Waddell, as assignee, virtute officii, took the title, and only in that way,—a very different state of the proof from that presented in the case at bar.
O’BRIEN, J., concurs.