40 Minn. 94 | Minn. | 1889
It is satisfactorily established by the record that on the 20th day of April, 1882, the plaintiff purchased of the defendants the village lot in controversy, and received their deed therefor, executed in due form, and in consideration thereof paid them the sum of $700. This deed contained the usual covenants of seisin, and for quiet enjoyment and peaceable possession. The plaintiff thereupon entered into possession, and in good faith made permanent improvements upon the premises of the value of $4,000. Thereafter, and while so in possession, she was notified by the heirs of one Ezekiel Tripp that they claimed to be the owners of the lot, and on or about July 1, 1885, they demanded the possession thereof, which being refused, they commenced an action against her to recover the same in August following. The plaintiff thereupon duly notified the defendants of the pendency of the suit, and requested them to defend the same, and make her title good, which they refused to do. Subsequently, and while the suit by the Tripp heirs against plaintiff was pending, another action between them and other parties, involving the same questions, was determined in their favor, in which the validity of the deed under which they claim title was affirmed, (which deed included this and other lots;) and it is found by the trial court in this action, upon competent and sufficient evidence, that the title acquired by them thereunder is paramount to that of plaintiff, under the deed to her from the defendants herein, and that they were in fact the lawful owners and entitled to the possession of the prem
1. By the covenant for quiet enjoyment the defendants undertook tq protect .the plaintiff’s pessession, not only as against themselves and those in privity with them, but also against the actual and hostile assertion of his right thereto by a lawful claimant, or the owner of the paramount title. “An assurance against disturbance consequent upon a defective title.” We think the court was right in holding the covenant broken in this case. The contention of the defendants is, however, that, in order to establish a breach of this covenant, there must have been an actual ouster, or at least a judgment of ouster in favor of the hostile claimant, under the pressure of which the possession is yielded. All agree that the mere fact of the existence of an outstanding superior title in a third person is not enough, and will not constitute a constructive eviction, or a disturbance of the possession of the covenantee. There must also be a hostile assertion of such title by the holder. But if the covenantee, on receiving his deed, is not able to obtain possession because kept out by tÉe holder of the paramount title, the adverse possession of the latter is equivalent to an eviction, and a breach of the covenant for quiet enjoyment, and a recovery under it may be had without any other act on the part of the covenantee or occupant. Shattuck v. Lamb, 65 N. Y. 499, 509; Scriver v. Smith, 100 N. Y. 471, 477, (3 N E. Rep. 675;) Fritz v. Pusey, 31 Minn. 368, (18 N. W. Rep. 94;) Rawle, Cov. (4th Ed.) 154. It could not be necessary that the covenantee in such case commit a trespass, or that he make an entry for the pur
If the demandant will sell, and the covenantee is willing to buy his title, there need be no actual dispossession. If the title is so asserted that he must submit or leave, he may purchase, and this will be considered a sufficient eviction to constitute a breach. 2 Wait, Act. & Def. 383. It is not necessary that he go through the formality of an ouster, and a re-entry under a purchase from the owner. Loomis v. Bedel, 11 N. H. 74. He must act in good faith with his covenantor, and make resistance, until it is apparent that resistance ceases to be a duty. If he yields without a suit prosecuted to judgment, he does so at his peril, and the burden will then be on him, in a suit between him and his covenantor, to show that he yielded to the pressure of the paramount title, which he will be required to establish with the same degree of particularity and certainty which would have been required of the holder thereof, in a suit against him to recover the locus in quo. Hamilton v. Cutts, supra. It is otherwise, however, in case of an eviction by force of a judgment, after due notice to the covenantor to defend; for in such case the judgment itself will be plenary evidence of the validity of the title of the demandant.
3. The finding of the trial court that the Tripp heirs held the paramount title is fully sustained by the evidence. The statute of limitations had not run against the assertion of it. The law secures to the occupant the benefit of the improvements, but further than that there is no basis for the claim that they are estopped in consequence of their delay by anything appearing of record as to the state of the title, or the circumstances or nature of the adverse possession. Their title appeared of record, and did not depend upon any misleading facts, outside the record, susceptible of being made the foundation of a claim of estoppel by conduct.
i. Upon the trial the defendants offered to prove in bar of this suit a former recovery for nominal damages by the plaintiff against them in an action for the breach of the covenant of seisin in defendants’ •deed, which action it appeared was brought before the purchase by the plaintiff of the outstanding title above referred to. We think the evi .idence was properly rejected. The recovery upon the covenant or seisin was for a technical breach, and for nominal damages only, on the ground that the plaintiff had as yet sustained no actual damages. She had acquired an actual seisin, and was still in the enjoyment of the property, and had not been evicted or disturbed in her possession, and had not bought in the outstanding title. Ogden v. Ball, 38 Minn.
Order affirmed.