40 N.Y.S. 316 | N.Y. App. Div. | 1896
The evidence in this case shows, beyond controversy, that the grantor, Aaron D. Gates, executed to this plaintiff a conveyance of certain premises in the village of Oxford, for the purchase price of one dollar, and that such purchase was made for the purpose of contracting its railroad across it; that at the time of such conveyance there was an outstanding mortgage for $2,000, upon these and other premises, given by the grantor, and, therefore, of course, then known by him to be outstanding and a lien upon the premises conveyed. The mortgage had been outstanding since February 2, 1869, but it was not put upon record until May 11,1810, at three-thirty o’clock, p. m. The deed to plaintiff was executed and delivered May 12, 1810. Such deed contained a covenant against incumbrances. It also contained a covenant of seisin and the usual covenant to warrant and defend. The grantor did not make known to the plaintiff the existence of the outstanding mortgage, and the purchase was made and the conveyance taken by plaintiff in ignorance of the same. The plaintiff constructed its railroad upon the premises so conveyed, and has ever since remained in the possession and use of the same. In June, 1892, the said mortgage was foreclosed, and the plaintiff, in order to prevent the sale of its premises thereunder, was compelled to pay and did pay to the holder of the mortgage the sum of $101. At the time of such payment the premises were worth the sum of $800.
The question presented by this appeal is whether, under such circumstances, the plaintiff is entitled to recover against the grantor’s estate the sum of $101, he was so compelled to pay, and interest from the time of its payment; or whether his damages should have been confined to the purchase price of the premises and interest thereon. The trial court awarded judgment to the plaintiff for such sum of $101 and interest, and from that judgment the defendant takes this appeal.
Although it has never been directly approved by the Court ■ of Appeals in this State, the rule that upon an action for a breach of covenant of seisin, and of warranty for quiet enjoyment, where there has been an actual eviction, the grantee can recover no more than the purchase price and interest, is too well-settled in this State to be disturbed by this court. (Jenks v. Quinn, 61 Hun, 434, and
Prior to the case of Dimmick v. Lockwood (10 Wend. 142) the rule seems to have been that in such cases the covenant was broken as soon as it was made, and that, therefore, an action might at once be maintained thereon. If the incumbrance was merely outstanding, and nothing had been paid or enforced against the grantee thereon, the damages in such an action were merely nominal. But if the grantee had paid the same, or any part thereof, he might recover from the grantor the amount so paid and interest. (Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 id. 105; De Forest v. Leete, 16 id. 123; Stanard v. Eldridge, Id. 225.) It is true that in the above cases the precise question, whether such recovery could in any event exceed the original purchase price and interest, was not discussed, but in each one of them the rule is stated without any such limitation as to the amount. In Dimmick v. Lockwood, however, doubt was expressed as to the accuracy of this rule, and, although that case could have been, and possibly was decided, upon the ground that it was one upon a breach of warranty for quiet enjoyment, and absolute eviction from the premises, and hence was controlled by the rule in such cases, yet it must be conceded that the reasoning of the court limits the damages in actions under either of the covenants above referred to, so that they cannot exceed the consideration paid for the premises. Since such case there have been some expressions in opinions, intimating that the rule is as therein stated. (Andrews v. Appel, 22 Hun, 429.)
But I do not find that the question has since been so decided in any case where it has been squarely up and its decision has been necessary. On the contrary, there have been some decisions which seem to be inconsistent with such a rule. Thus, in Huyck v. Andrews (113 N. Y. 81) it is held that in an action on a covenant against incumbrances, when the breach claimed was the existence of an easement upon the premises, the measure of damages is the difference in value of the land with and without the easement. (See, also, Hymes v. Esty, 133 N. Y. 342-346.) It seems, therefore, that where the action is upon a covenant against incumbrances, and the breach assigned is, not that the title has failed and that an
It is a fair presumption that, in all cases where lands are sold and conveyed, the parties understood that the purchaser will put such improvements on them as he deems necessary for their profitable
In my opinion the judgment of the trial court was correct and ' should be affirmed.
All concurred.
Judgment affirmed, with costs.