60 Fla. 284 | Fla. | 1910
On the 27th day of February, A. D., 1900, the plaintiff in error joined by his wife, executed a deed to the plaintiff in error, in which he granted, bargained, sold and conveyed to the defendant in error 145 acres of land more or less lying in Citrus county, Florida, together with the tenements, hereditaments and appurtenances thereunto belonging. In this deed' the plaintiff in error and his wife, the parties of the first part, “do hereby bind themselves and their heirs, executors and administrators to warrant and forever defend the title to said premises unto the said party of the second part its heirs, successors and assigns against the said parties of the first part and their heirs, executors and administrators, and against all persons whomsoever lawfully or equitably claiming, or to claim the same.” There was no other covenant in the deed.
On the 26th of May, 1891, the plaintiff in error and his wife executed and delivered a deed to the Silver Springs Ocala & Gulf Railroad Company conveying for a right of
It is held in many respectable jurisdictions that the existence of a public highway, or a railroad right of way, in no wise interfering with the technical seizin of the grantee in the deed, and which was a visible notorious easement when the deed was executed is not a breach of the covenant against encumbrances, or of the general warranty. For it being open and visible the purchaser must be presumed to have seen it and to havé fixed his price with reference to the actual condition of the land at the time of purchase. 11 Cyc., 1067. Why should the technical rules of conveyancing be converted into a trap to catch an unwary grantor, unskilled in them, when it is perfectly obvious that he never intended to bind himself to do that which he could not do, viz., remove a railroad right of way and track from the land he is selling, the existence of which was perfectly obvious to the purchaser? The alie
In the case of Desvergers v. Willis, 56 Ga., 515, S. C. 21 Am. Rep., 289, it was held that “a covenant against encumbrances in a deed of land is not broken by the existence of a public road over the land known to the purchasers at the time of the purchase.” In the opinion delivered by Chief Justice Warner, it is said: “A general warranty of title to land against the claims of all persons includes in itself covenant of a right to sell and of quiet enjoyment and of freedom from encumbrances (Code
In Moore v. Johnson, 87 Ala., 220, 6 South. Rep., 50, in an opinion by Justice Somerville the existence of a public easement as a street, or right of way which does not affect the technical seizin of the purchaser is not a breach of the covenant of seizin.
In the case of Brown v. Young, 69 Iowa, 625, 29 N. W. Rep., 941, it is held that “a right of way for a railroad is only an easement though it be conveyed by a deed, and the existence of such easement is not a breach of the covenant as to title, in a warranty deed, subsequently made conveying the land.
In the case of Whitbeck v. Cook, 15 Johnson (N. Y.) 483, it is held “it is not a breach of the covenants that the grantor was lawful owner of the land, was well seized, and had full power to convey, that part ■ of the land was a public highway and was used as such—a public highway being a mere easement, and the seizin and right to convey,
In the case of Wilson v. Cochran, 46 Pa. St., 229, it was among other things held that “a purchaser, who sees a public road that has been used thirty years upon the land he is buying has no right to consider it an encumbrance within the meaning of a covenant against encumbrances. If it is not a positive benefit to the premises he is presumed to have estimated its disadvantages in adjusting the price he has agreed to pay.”
In the case of Kutz v. McCune, 22 Wis., 628, 99 Am. Dec. 85, it is held that the existence of an easement obviously and notoriously affecting physical condition of land at the time of its sale such as a right of flowing the land by a mill pond in actual existence upon it, does not constitute a breach of a general covenant against encumbrances.” The opinion in this case is strong and well reasoned.
In the case of Smith v. Hughes, 50 Wis., 620, 7 N. W. Rep., 653, it is held that “where there are railways, or other highways, in use as such, on land at the time of its sale the purchaser is presumed to have taken with knowl
In the case of Memmert v. McKeen, 112 Pa. St. 315, 4 Atl., 542, Mr. Justice Paxson, in delivering the opinion of the court says: “Incumbrances are of two kinds, vis., 1. Such as affect the title; and 2. Those which affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a public road, or a right of way of the latter. Where incumbrances of the former class exist, the covenant referred to (against incumbrancesj under all the authorities is broken the instant it is made, and it is of no importance that the grantee had notice of them when he took the title: Cathcart v. Bowman, 5 Pa. St. 317; Funk v. Voneida, 11 S. & R. 109. Such incumbrances are usually of a temporary character and capable of removal; the very object of the covenant is to protect the vendee. against them; hence knowledge actual or constructive, of their existence, is no answer to an action for breach of such covenant. Where, however, there is servitude imposed upon the land which is visible to the eye, and which affects not title, but the physical condition of the property, a different rule prevails. Thus it was held in Patterson v. Arthurs, 9 Watts 152, that where the owner had covenanted to convey certain lots free from all incumbrance a public road which occupied a portion of such lots was not an incumbrance within the meaning of the covenant. This is not because of any right acquired by the public, but by reason of the fact that the road, although admittedly an incumbrance and possibly an injury to the'property, was there when the purchaser bought and he is presumed to have had knowledge of it. In such and similar cases there is the further presumption that if the incumbrance is really an injury, such injury was in the contemplation of the parties and that the price was regulated accordingly. It was said
In the case of Janes v. Jenkins, 34 Md., 1, text 10, the question was whether a servitude which had been created upon land by the owner, made him liable to an action for breach of the covenants in a subsequent deed by the grantee in the latter deed, the court says: “Then, as to the second question, whether the existence of this servitude or burthen upon the property sold to the appellant, and the enjoyment thereof by the owner of the eastern lot constitute a breach of the covenant of special warranty? (The warranty was to the effect that the grantor shall forever warrant and defend the property against the claims of .grantor and all persons). This depends upon the apparent and ostensible condition of the property at the time of .sale. And as the wall had been erected, and the lights therein were plainly to be seen when the appellant pur- • chased the property overlooked by them it is but natural to conclude that he contracted with reference to that condition of the property and that the price was regulated accordingly. The parties, in the absence of anything to the .contrary are presumed to have contracted with reference
In the case of Pomeroy, ex’r v. Chicago & Milwaukee Railroad Company, 25 Wis., 641, Justice Payne, on page 643, says: “Where there is a sale of a tract of land upon which there is an obvious existing easement or burden of any kind like an ordinary highway, a railroad or millpond, the fair presumption, in the absence of any express provision in the contract upon the subject is that both parties act with direct reference to the apparent existing burden, and that the vendor demands, and the purchaser pays only the value of the land subject to it.”
In an order made by the Circuit Judge it appears that both parties relied in the court below, upon the decision of this court in the case of Silver Springs, O & G. R. Co. v. Van Ness, 45 Fla., 559, 34 South. Rep., 884. That case certainly determines that the deed which is before us only conveyed an easement to the railroad company, and that the technical right to the phosphate underneath the railroad was still in the grantor. That is the true condition now. Should the railroad track be removed or abandoned the right of the defendant in error to the phosphate would be unrestricted.
For the reasons given, the judgment below is reversed.