80 Neb. 438 | Neb. | 1908
Three important questions are presented in this case. Two of them have been very much discussed by the courts of the country generally, and the authorities are somewhat at variance thereon. .In the decisions of this court there appears to be a diversity of expression at least, and perhaps it may he said a conflict in principle. The real estate in controversy was conveyed to this defendant by a deed with general covenants of warranty executed jointly by one Emma Carse, widow of Henry Carse, deceased, and her daughter, Alice V. McCandless, the husband of Mrs. McCandless joining also in the deed. Henry Carse in his lifetime was the owner of the premises and had good title thereto. The said deed to this defendant recited that the grantors were the heirs of Henry Carse. The defendant conveyed the land to this plaintiff, the deed of conveyance containing covenants of title and warranty. Afterwards the plaintiff discovered that Mrs. Carse and her daughter were not the only heirs of Henry Carse; that an adopted
1. The decisions of this court are not as clear and satisfactory as might be wished upon the first question above suggested. It seems to be conceded in the briefs that all of the courts of this country, including the supreme court of the United States, but excepting the courts of Ohio, Wisconsin and Nebraska, hold that a covenant in a deed that the grantor has perfect title is broken when made if the title is not perfect, and that an action at once accrues thereon for damages. In Ohio it is held “that a seizin in fact of the grantor at the time the deed was executed is a sufficient compliance with the covenant of seizin in the deed.” In this holding it would appear that the word “seizin” is construed to mean a claim of title accompanied with possession, and therefore in Ohio under a covenant of seizin an action cannot be maintained for damages on
In the case at bar, the covenant contained four express promises: “That I hold said premises by good and perfect title; that I have good right and lawful authority to sell and convey the same; that they are free and clear of all liens and incumbrances whatsoever; and I covenant to warrant and defend the said premises against the lawful
2. The second question as to the measure of damages in such case has also been much discussed and presents some difficulty. More than a century and a quarter ago the courts of England established the principle that upon a contract for the purchase of real estate, if the vendor, without fraud, is incapable of making a good title, the purchaser is not entitled to any compensation for the loss of his bargain. Flureau v. Thornhill, 2 Wm. Bl. (Eng.) *1078. This case appears to have been generally followed in England since that time, and the questions discussed in regard to it have been as to exceptions to the rule. A discussion of this matter may be found in a somewhat extensive note to Kirkpatrick v. Downing, 17 Am. Rep. 678 (58 Mo. 32). In the principal case the Missouri cour? discusses the matter somewhat at length, and referring to the authorities in this country and after quoting from the opinion of the supreme court of the United States in Hopkins v. Lee, 6 Wheat. *109, which it appears to follow, the Missouri court said: “The rule (of the United States court) commends itself for its intrinsic justice. It conforms to the varying circumstances of each particular case, and. is equitable and just. The arbitrary and. unbending rule that the purchase money and interest shall in all
We think that whether we are bound by the earlier decisions of this court to observe a different rule in the case of breach of a similar covenant in a deed of conveyance it is unnecessary now to discuss, further than to illustrate the rule that should be applied to a case like the one at bar. In this case there was not an entire failure of title. The plaintiff contended, and the trial court appears to have held, as stated in 11 Cyc. 1163, that, “where the breach is only as to ah aliquot and undivided part of the land attempted to be conveyed, the damages are in proportion to the whole consideration paid as that aliquot part of the land is to the whole thereof.” We think that, in any view of the proper measure of damages in ordinary cases of the breach of such covenants, the rule above quoted, if correct (which we do not decide), has not been properly applied in this case. After the defendant had obtained her title from Mrs. Carse she put valuable and lasting improvements upon the land, and this plaintiff has also made valuable improvements as before stated. Under our occupying claimant’s act this plaintiff could not be deprived of the land without payment for the improvements made both by himself and by his grantor who held under the same title. What, then, could the adopted child of Mr.' Carse, whose interest in the land has not been conveyed, claim in this land? The failure .of title which this plaintiff obtained through his deed is only as to the interest of this adopted child. It is true that, in an action like this for damages for a breach of covenant of title, difficulties and' uncertainties are involved as to the real value of the interest in the land not conveyed to this plaintiff in his deed. These difficulties and uncertainties the plaintiff himself has brought to the court, by not first bringing an action to determine and have adjudicated the
The plaintiff insists that this issue is not presented in the pleadings, but we think that this objection is not well taken. The plaintiff in his petition alleged: “That after the purchase of said premises from said defendant, and prior to plaintiff’s knowledge of said defect in the title and the interest of said Avis Earleen Carso in and to said premises, the plaintiff had expended in permanent improvements and betterments on said premises the sum of $350.” The answer was a general denial. The court allowed the plaintiff to recover one-half of the improvements placed thereon by himself. This he Avas not entitled to on any theory of the rule of measure of damages in such case. The plaintiff, being still in possession of the land and in use of these improvements, has not lost the value thereof through the defect in his title.
The judgment of the district court is therefore reversed and the cause remanded.
Reversed.