Adams v. Seymour, 3676

• Decision Date: 06 September 1950
• Docket Number: No. 3676,3676
• Citation: 191 Va. 372,61 S.E.2d 23
• Parties: T. A. ADAMS v. W. L. SEYMOUR AND J. W. HILL. Record
• Court: Virginia Supreme Court

Page 23

61 S.E.2d 23

191 Va. 372

T. A. ADAMS v. W. L. SEYMOUR AND J. W. HILL.

Record No. 3676.

Supreme Court of Appeals of Virginia

September 6, 1950.

Easley, Edmunds & Vaughan, for the plaintiff in error.

Don P. Bagwell, for the defendants in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Seymour and Hill, plaintiffs below, recovered a judgment against Adams for $1,500 damages for breach of covenants in a deed made by Adams to Seymour. Hill had an equitable interest in the conveyance.

Adams, the owner of a tract of 271 acres of land, conveyed to Hanlon and partners certain timber with removal rights on two parcels, described as Lot No. 1 and Lot No. 2, by deed dated August 2, 1945, and duly recorded.

Afterwards, by deed dated January 10, 1947, also recorded, Adams and wife conveyed the 271-acre tract to Seymour for a consideration of $4,000 cash, making no reference to the timber deed to Hanlon but conveying with covenant of general warranty and the additional covenants quoted below.

By deed of March 14, 1947, Seymour and wife conveyed the land to Wade for a consideration of $4,875, likewise making no reference to the timber deed, but conveying with covenants of general warranty, seizin in fee, right to convey, quiet possession, freedom from encumbrances and further assurances. Wade later sold part of the timber on the land to Gough, and while the latter was in process of cutting and removing it, he was stopped by Hanlon. Seymour afterwards paid Hanlon and partners $1,500 in settlement of their claim and he and Hill then brought this suit against Adams.

At the trial, which was to the court without a jury, Adams filed a demurrer alleging that the timber deed did not constitute a breach of his warranty and that the plaintiffs' loss did not result from such breach. Upon its being overruled he filed special pleas, alleging mutual mistake and estoppel. On similar grounds he claims here that the judgment should be reversed. The substance of his claim is that the plaintiffs knew all about the timber deed; that it was not intended by either party that the timber should be conveyed to Seymour and, therefore, the timber deed did not constitute a breach of the covenants in his deed to Seymour. A further statement of the evidence is necessary to an understanding of the opposing contentions.

A year or more after the timber deed was made, adams employed Seymour and Hill, who were land auctioneers, to sell the 271-acre tract at public auction. Prior to the auction Hill looked over the land with Adams, and Adams showed him where the timber had been cut and what he thought was left. Hill testified it did not look like much was left and that Adams told him he did not think any more would be cut. At Hill's suggestion Adams got from Hanlon this signed statement, dated November 21, 1946:

'This is to certify that we have cut all the timber that was deeded to me by Theo. A. Adams in deed dated August 2, 1945, and known as Lot Number 2, or all that portion that was due me on the northwest side of the creek.'

This was read at the auction, which was held next day, and it was then stated 'that we didn't think that there would be any more timber cut.' The attempted auction did not produce an offer of the minimum sale price of $4,878, fixed by Adams, and no sale was made.

Adams then proposed to sell the property to Seymour and Hill and after some days of bargaining they bought it for $4,000, paying $200 down, for which Adams executed a receipt dated December 19, 1946, providing that the balance would be paid in cash on delivery of a deed with general warranty of title. Thereafter the deed of January 10, 1947, was made containing the covenant of general warranty and these additional covenants:

'The aforesaid grantors covenant that they are seized in fee simple of the realty hereby conveyed and have the right and power to convey the same in fee simple to the said grantee; that the said grantee shall have quiet and peaceful possession thereof free from eviction or disturbance; that the realty hereby granted is unencumbered; and that they, the said grantors, will execute all such other and further assurances of the said land and the title thereof as may be requisite.'

Seymour and Hill both testified that at the time they bought, on December 19, Adams assured them that no more timber would be cut and they purchased in reliance on that assurance and on the covenants in their deed. Adams denied that any such assurance was given. Seymour testified that Adams gave him his deed and told him to have Adams' attorney prepare the deed to Seymour from it. After it was prepared Adams executed it at the attorney's office, took it home where his wife executed it, and two or three days later he delivered it to Seymour. He testified that he did not read a word of the deed before delivering it and knew nothing about the covenants it contained.

When Wade bought, he employed McKinney, an attorney, to examine the title. McKinney discovered the timber deed and called Seymour about it. Seymour stated that the matter was all cleared up and there would be no more timber cut. Seymour produced the Hanlon statement, quoted above, and upon that and Seymour's statement McKinney approved the title and Wade accepted the deed from Seymour containing the same covenants as Adams made, noted above.

About a year after the sale to Wade, when Hanlon found out that the timber Adams had conveyed to him and his partners was being cut by Wade's vendee and stopped the cutting, he, Wade and the latter's vendee came to see McKinney about it. McKinney testified that Seymour was not then available and something had to be done right away. It was agreed that Hanlon's claim would be settled for $1,500, whereupon Wade's vendee resumed cutting. McKinney later made demand on Seymour telling him that Wade would take action if the claim wasn't paid. Seymour made demand on Adams and several conferences followed in an effort to compromise. Adams refused to pay or contribute and Seymour paid the $1,500 to Hanlon and partners on August 26, 1948.

Defendant's first contention is that the plaintiffs' damages did not result from a breach of any covenants in his deed, but resulted from the subsequent conveyance of the property by the plaintiffs to Wade with general warranty and the English covenants, notwithstanding their full knowledge of the condition of the title, and therefore they assumed responsibility for what followed. We find no substance in this point. Defendant's covenants were not so conditioned.

Defendant also asserts that his covenant against encumbrances was broken when made, because of the prior timber deed and that plaintiffs should have asserted their claim while they owned the land, citing Jones v. Richmond, 88 Va. 231, 13 S.E. 414. The covenant in that case was of general warranty, running with the land, not breached until eviction, actual or constructive, and the holding was that the action thereon could not be maintained by one who had parted with the title. It is not in point here.

Here defendant's deed included a covenant of quiet possession free from encumbrances. He thereby promised that the plaintiffs might hold and enjoy the land free from any interruption, claim or demand by anybody, and that he would indemnify and save them harmless against any and every charge or encumbrance. Code, 1950, sec. 55-72. That covenant was broken when made because of the existing timber deed, giving rise to a right of action when defendant refused to indemnify plaintiffs against the loss caused by it. The plaintiffs had a right to purchase this adverse claim at a fair value, which the evidence shows without dispute they did, and then to call upon the defendant for reimbursement. Rosenberger v. Keller, 33 Gratt. (74 Va.) 489, 493; Anno., 61 A.L.R. 10, at p. 105.

Defendant asserts that his covenant against encumbrances should not apply to the timber deed because the failure to except that deed from his conveyance was a mutual mistake. If it be assumed that such defense was available to him in an action at law on his covenant, the answer is that the evidence fails to establish his claim. The finding of the trial court, like the verdict of a jury, settles the conflicts in the evidence in favor of the plaintiffs and cannot be disturbed if there is credible evidence sufficient to sustain it. Tidewater Corp. v. McCormick, 189 Va. 158, 167, 52 S.E. (2d) 61, 65; Duncan v. Barbour, 188 Va. 53, 55, 49 S.E. (2d) 260, 261; Mauser v. Hebb, 187 Va. 876, 879, 48 S.E. (2d) 257, 259.

Both plaintiffs testified flatly that they accepted defendant's deed relying on his assurance that the timber matter had been settled and that no more timber would be cut, together with his covenants that he was seized in fee simple and that there were no encumbrances. They testified they would not have bought the property without these assurances and would not have accepted the deed had it been written any other way. Adams did not deny their testimony that at the auction sale it was publicly stated, repeating what Adams had previously told the plaintiffs, that it was thought no more timber would be cut. Adams did not claim that he had any understanding with the plaintiffs that the uncut timber was to be reserved. He admitted that it was never mentioned except, he said, that when he gave Seymour his deed to have the deed to Seymour prepared he told Seymour it did not have the timber deed in it, and that was all that was said. Seymour denied that this much was said. If it was, it was all the more strange that after his attorney prepared and delivered the deed to him he would have kept it two or three days without ever looking to see what he was conveying and what obligations he was assuming. It was his duty to read it and he is bound by its provisions to the same extent as if he had done so. Coral Gables Corp. v. Clay, 153 Va. 554, 149 S.E. 519; 26 C.J.S., Deeds, sec. 54,...