34 Ill. 494 | Ill. | 1864
delivered the opinion of the Court:
Did the court below err in sustaining the demurrer to appellants’ fourth plea? To that plea there were five several replications, to which a demurrer was overruled. The plea avers, that the notes sued upon were given for the purchase of lands described in the plea, and that the sole consideration for their execution was a deed of conveyance of the land, and the covenants it contained. That the land was conveyed for the sum of'$4,000, for a part of which these notes were given. That the deed contained a covenant, that the grantor was lawfully seized in fee simple, and that the premises were free from incumbrance. That when the deed was made, appellee was not well seized, and the lands were not free from incumbrance, but were and still remain incumbered by a certain mortgage made' by Mathews, appellee’s grantor, to Clarinda Willets, to secure the payment of $1,123.98, one-half due in two years from the- fourth of August, 1858, and- the remainder in three years from that date, the entire sum drawing ten per cent, interest. That the mortgage contained a provision, that if Mathews should fail to pay the notes, according to their tenor and effect, the title to the premises should be vested and become absolute in and belong to the mortgagee. ’
That appellee derived all of his right and title to the property from Mathews, by deed made subsequent to the mortgage. That the deed to Clarinda Willets was recorded before the deed of Mathews to appellee. . That the notes secured by the mortgage, or either of them have not been paid, and the title to the premises has become absolute in Clarinda Willets, whereby the consideration of the notes has failed.
The averment in the plea is, that the the covenants in the deed formed the consideration of the notes sued upon in this action. It is specifically averred that the consideration was the deed and covenants it contained. It is obvious, that covenants for title are a consideration to support a promissory note. The deed and covenants were received and relied upon by appellant when he executed the notes. The contract was fully executed by appellee when he made the conveyance. The plea does not aver that the purchase of title to the land was the consideration of the notes, but it was the deed and covenants. If the covenants had been for the conveyance of the title, and at the maturity of the notes appellant had offered to perform his part of the contract, and appellee had been unable to convey title, then appellant might have rescinded the contract, avoided the payment of the notes and recovered any portion of the purchase-money already paid. The case of Foster v. Jared, 12 Ill. 451, sustains this doctrine.
In the case at bar, there is no pretense that there has been a rescission of the contract; no reconveyance of the land has been made or even offered by appellant. He has ample remedy on the covenants, if there has been a breach, for the recovery of all damages he may have sustained. Or if he had paid the mortgage, or any portion of it, he might have set off the damages thus sustained against the notes in this action. Thenivins- of the covenant and the notes form but one-transaction.. and damages arising from a breach of the covenant, grow out of the contract and may be set off against the notes. Sargent v. Kellogg, 5 Gilm. 273; Edwards v. Todd, 1 Scam. 462; Nichols v. Ruckells, 3 id. 298; Kaskaskia Bridge Co. v. Sherman, 1 Gilm. 15. These cases in principle sustain such a defense.
The averments of the plea do not show a failure of consideration, but they do show a breach of the covenants, which were the consideration for the notes. But it does not even show that the title had failed. It appears that the title to the land rested in appellant, and there is nothing appearing that it has failed. It was incumbered, it is true; still, the title passed, and has not been divested. From anything that is shown, we do not perceive that anything prevents a redemption so as to free the title from incumbrance. The mere fact that the mortgage declared that the title should vest in the mortgagee, if prompt payment should not be made, could not bar a redemption. That could only be done by a foreclosure. For aught that appears, appellant may be in the peaceable possession of the premises, and may not ever sustain damages by reason of the incumbrance. On a breach of a covenant against incumbrances, the grantee can only recover such damages as he has actually sustained. If by it the title has failed, and the premises have been lost, he may recover to the full extent of the covenant; or, if he has removed the incumbrance, he may recover the sum paid for the purpose, unless it exceeds the limits of the covenant. But if he has not been disturbed in the title, or has paid nothing to remove the incumbrance, he can only recover nominal damages for the breach. If, however, eviction has taken place, he may recover substantial damages. The plea fails to aver that appellant has been evicted, or that he has paid anything on the incumbrance; and it follows that the breach is only technical, and if it was a plea of set-off, it would only be of nominal damages. For these reasons, we must hold the plea bad, and that the demurrer was properly sustained.
The other pleas in the case are in substance the same, except that they aver an eviction. But we have seen that the. deed and the covenants were the consideration, and it is not averred that the title has failed. The covenant has heen broken, but appellant still holds the deed and the covenants, with the right to sue for their breach, or, if he choose, to set off the damages by a proper plea. But an eviction under the mortgage, without a foreclosure, does not change the title to the property. It would still remain subject to redemption, and the title still in appellant subject to the mortgage. But it would be otherwise if there had been an eviction under a foreclosure, as then the title would have been divested out of appellant, but still it would not have constituted a failure of consideration of the notes.
The replications to the several pleas, the demurrer to which was overruled, denied that appellee covenanted in manner and form as alleged in the pleas. That averment, had the pleas been otherwise sufficient, would have been material, and must have been proved when traversed, before appellant could have succeeded in his defense. If there was no such covenant, there could have been no breach. But even if the replications were not sufficient, they were good enough for the bad pleas to which they were hied. The other assignments of errors are not insisted upon, and we will not consider them. The judgment of the court below is affirmed.
Judgment affirmed.
