13 A.2d 195 | Vt. | 1940
This is an action against defendants, who are husband and wife, for a breach of covenant of seisin. In 1933 the plaintiff purchased of the defendants a rectangular lot in Highgate with a frontage of 50 feet and a depth of 60 feet. By the deed in question, dated April 2, 1934, a strip of land 10 feet wide and 60 feet deep, adjoining the above lot on the north, was conveyed, also another lot of land 60 feet wide, adjoining on the east side of the above lot combined with the 10 foot strip, and having depth of about 78 feet. Although the plaintiff claimed failure of title to a strip 10 feet by 138 feet along the entire north side of both lots, the court only submitted to the jury the failure of title to the above strip 10 feet wide by 60 feet deep. Verdict and judgment were for the plaintiff, to which the defendants excepted.
The first question briefed has to do with the right to maintain this action against the defendant Marion M. Platt. This question was saved by a number of exceptions, but it is only necessary to call attention to the exception to the overruling of her motion for a directed verdict. This motion set forth that *187 she and her husband were tenants by the entirety and that she had no sole and separate interest, and hence that she was unable to make a contract or covenant relative to the land conveyed which would be binding upon her personally.
In Citizens Savings Bank Trust Co. v. Jenkins,
Shortly after the decision of the Jenkins case, it was held inPope v. Hogan,
As the defendants acquired their title as tenants by the entirety in 1925, the defendant Marion M. Platt had a right under P.L. 3074 to join in the covenant in question and she is equally liable with her husband for its breach. This group of exceptions is overruled.
The remaining exceptions have to do with the measure of damages and the sufficiency of the evidence to support more than nominal damages. As substantially the same question is raised in all of this group of exceptions we will confine our discussion to the exception to the charge.
After telling the jury that the case turned upon the relative amount ascribed to the strip of land 10 feet wide and 60 feet deep with respect to its relationship to the entire amount of the purchase, the court charged that when there is a total failure of title a plaintiff can recover the purchase price plus interest, but that, in the event of a partial failure, the jury should apportion between the part wrongfully conveyed and the part rightfully conveyed the ratio between the purchase price and the other elements that they think the plaintiff is entitled to receive; that they were to take into consideration all of the surrounding circumstances which may or may not add a particular value to the ten foot strip with respect to the whole, and concluded: "It can be anything from zero to $150.00, depending upon the relationship and the value which you ascribe to that relationship *189 between the ten foot lot and the entire purchase." To this quoted part of the charge exception was taken upon the ground that there was no evidence that the strip in question had any special value.
From the whole charge it is clear that the court, although expressing it in different language, was following a rule which is stated in 15 C.J. 1321 as follows: "The general rule for the measurement of the damages in case of failure of title to a portion of the land conveyed is that the vendee can recover only such part of the original purchase price as bears the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole premises, such relative values to be ascertained as of the time of the conveyance instead of the time of trial, together with interest." This rule is stated somewhat differently in 14 Am. Jur., Covenants, Conditions and Restrictions, § 150, p. 581, as follows: "The value of the land at the time of the conveyance, as measured by the purchase price, forms the basis for computing the proportionate loss. If the sale was for a gross sum without any specific valuation on any particular tract, then the deduction must be in proportion to the relative value, when taken in connection with the entire tract."
The purchase price of the entire tract was $150.00, and the jury brought in for the ten foot strip, which was only a little over one-ninth of the entire tract, a verdict for $152.95. This represents a principal sum of about $115.00 plus interest. The exception raises the question of the sufficiency of the evidence to justify a verdict for any particular sum up to $150.00 as charged or, in connection with the exception to the overruling of the motion to set aside the verdict, a verdict for the amount brought in.
It appeared that plaintiff's fifty foot lot was on a ledge overlooking, but not abutting upon, Lake Champlain and that there was a cottage upon it. The purchase of the tract in question was for the purpose of gaining 10 feet more frontage, which could be graded and made into lawn in front, and a lot in back 60 feet wide extending to the road for a driveway and a garden and for the erection of a garage. All the evidence as to values was that the purchase price of the entire tract, which *190
covered the ten foot strip and the lot in back, was "dirt cheap" at $150.00; that the value of the 50 foot lot at the time of its purchase in 1933 and before the erection of the cottage was $150.00; that the value of both lots including the ten foot strip, before erection of improvements was $300.00; and that a ten foot strip all the way from the front of the 50 foot lot to the road, 138 feet, was worth $200.00. Because of plaintiff's claims that she was entitled to recover for this ten foot strip 138 feet long, no evidence was introduced relative to the value alone of the strip 10 feet wide and 60 feet deep on the north side of the 50 foot lot. There was no evidence as to the value of the lot in back without this ten foot strip. With the evidence of values standing thus a jury could not apply the rule of apportionment without speculation and conjecture, and that is insufficient foundation for a verdict. Wellman, Admr. v. Wales,
Judgment reversed and cause remanded.