94 So. 237 | Miss. | 1922
delivered the opinion of the court.
This is a suit in equity in which the appellant was the complainant in the court below and the appellees the defendants, by which the complainant seeks to enjoin the sale of certain land under a deed of trust until certain credits have been allowed on the debt secured thereby. The bill alleges in' substance: That Henry executed- and delivered to the complainant in February, 1914, a deed to the land containing the following covenant of warranty:
That the complainant executed and delivered to Henry his note for the sum to be paid by him for the land, and secured it by a deed of trust thereon in which Sessums is the trustee. That the complainant has paid two hundred sixty-four dollars on the note, and that he is entitled to certain additional credits thereon because of the following breaches of the covenant of warranty contained in his deed from Henry, to wit: forty acres of the land were not owned by Henry, but belonged to the government, and twenty acres of it are in the possession of third parties who claim to own it. That the complainant paid the government ninety-eight dollars and fifteen cents for the land in December, 1917, and in addition thereto was compelled to spend one hundred dollars in obtaining the government’s title. That the rental value of the land to which the government had the title is fifty ,dollars per acre per annum, and that the value of the other land to which he has failed to obtain possession is two hundred fifty dollars. For all of which he claims credit.
The allegation setting forth the adverse possession of the twenty acres of the land is as follows:
“That the said S. J. Henry did not have title to that portion of the land herein last described as being in section 2, and that part of the land described as being in section 2 is now in the possession of and is claimed by other parties known as the heirs of Frank Walton, now deceased, said heirs being Amanda Hunter, Alice Smith, Hetha Williams, Mose Walton, Frank Walton, Jr., Bell Day, Viola Morrow, Sam Walton, Ida Body, Bud Walton, Ada Walton, Avera Holden, and Frank McMullan, and that part of the land herein described and being in section 2 is now in possession of the said mentioned heirs, and has been for eighteen years or more, and since the death of
The defendants by their answer admitted that the appellant is entitled to credit for the two hundred sixty-four dollars paid and for the ninety-eight dollars and fifteen cents paid by him to the government, with interest thereon, but denied the right to the other credits claimed.
The cause was submitted on bill, answer, and the evidence introduced by the complainant, the defendant not introducing any evidence, and a decree was rendered in accordance with the admission of the defendants’ answer.
It appears from the evidence introduced by the complainant : That the rental value of the government land is fifty dollars per acre per annum. That the complainant paid a man named Moore fifty dollars for assistance, consumed three or four days of his own time, worth three dollars per day, and incurred certain personal expenses, amounting to twenty-four dollars, in obtaining the government title. But it does not appear from the evidence what assistance Moore rendered him, nor of what his personal expenses consisted, why it was necessary for him to incur either item or to spend three or four days himself in making the purchase. That at the time the land was sold to him by Henry twenty acres of it was and still is in the possession of the Walton heirs, who claim to have inherited it from their father, Frank Walton, who died about twenty years before the cause was tried, but by what title, if any, Frank Walton held it, was not shown. The evidence in support of this possession is most general,
The appellant is not entitled to the rent claimed on the land to which the government had the title, for where the vendee in a deed by which the title to the land conveying is warranted, purchases an outstanding, paramount title thereto, his damages for the breach of the warranty will be “the money which he has been forced to expend for the . . . perfecting of his title, and such other damages as may have been caused by the breach of warranty.” Holloway v. Miller, 84 Miss. 776, 36 So. 531; Wade v. Barlow, 99 Miss. 33, 54 So. 662; Withers v. Bank, 104 Miss. 681, 61 So. 690. This will include interest, but whether it will also include incidental expenses and reasonable compensation for his trouble in perfecting his title (15 C. J. 1324) we are not now called on to determine, for the reason that the evidence does not disclose what services Moore rendered, for what the complainant’s personal expenses were incurred, in what manner his time was employed, nor the necessity therefor.
It is not clear, either from the bill of complaint or the brief of counsel for the appellant, whether the credit claimed for the land alleged to be in the possession of the Walton heirs is because of a breach of a covenant of seizin or of title. The deed from Henry to the appellant in which the- covenant is contained is not in the form prescribed by section 2816, Code of 1906 (Hemingway’s Code, section 2317); id est, it does not simply “convey and warrant” the land. Nor is the word “warrant” used therein “without restrictive words,” so that under sectipn 2817, Code of 1906 (Hemingway’s Code, section 2318), it would embrace, because of the absence of restrictive words, the five common-law covenants of seizin, power to convey, freedom from
“That the said party of the first part shall forever warrant and defend, the title to the said premises unto the party of the second part, his heirs and assigns, against the claims of- all persons lawfully claiming the same or any part thereof.”
This is simply a warranty of title, and does not include a, covenant of seizin (Witty v. Hightower, 12 Smedes & M. 478); consequently Allen v. Caffee, 85 Miss. 766, 38 So. 186, is not in point, and the appellant cannot recover simply because he has- failed to obtain the possession of the land. In order for a covenantee to recover on a covenant of title because of being excluded from the possession of land, he must have yielded the possession thereof to one holding the paramount title thereto. Dennis v. Heath, 11 Smedes & M. 206, 49 Am. Dec. 51; Witty v. Hightower, 12 Smedes & M. 478; Glenn v. Thistle, 23 Miss. 42; Burrus v. Wilkinson, 31 Miss. 537; Green v. Irving, 54 Miss. 450, 28 Am. Rep. 360; Allen v. Miller, 99 Miss. 75, 54 So. 731; Coopwood v. McCandless, 99 Miss. 364, 54 So. 1007.
The burden of proving that the title of the person to whom the possession of the land was yielded is paramount is on the vendee when seeking to recover on the warranty. Allen v. Miller, 99 Miss. 75, 54 So. 731; Coopwood v. McCandless, 99 Miss. 364, 54 So. 1007. He must prove that the title to which he yielded is such as would support an action of ejectment. The appellant failed to sustain this burden, for he did not attempt to show title in the Walton heirs by deed, and the evidence is insufficient to show title in them by adverse possession.
Affirmed.