Alger-Sullivan Lumber Co. v. Union Trust Co.

• Decision Date: 25 October 1928
• Docket Number: 3 Div. 813
• Citation: 118 So. 760,218 Ala. 448
• Parties: ALGER-SULLIVAN LUMBER CO. v. UNION TRUST CO. et al.
• Court: Alabama Supreme Court

118 So. 760

218 Ala. 448

ALGER-SULLIVAN LUMBER CO. v. UNION TRUST CO. et al.

3 Div. 813

Supreme Court of Alabama

October 25, 1928

Rehearing Denied Dec. 6, 1928

Appeal from Circuit Court, Conecuh County; Claude A. Grayson, Judge.

Bill in equity by the Alger-Sullivan Lumber Company against the Union Trust Company and others. From a decree awarding complainant nominal damages, and fixing the amount, with interest, due by complainants on outstanding bonds secured by deed of trust complainant appeals. Affirmed in part, and in part reversed and remanded.

Harry T. Smith & Caffey, of Mobile, and Ray Rushton, of Montgomery for appellant.

Hamilton & Jones, of Evergreen, and D.M. Powell, of Greenville, for appellees.

ANDERSON C.J.

This case has been before the court upon two former appeals. 207 Ala. 138, 92 So. 254; 209 Ala. 432, 96 So. 436. The writer is of the opinion that the former opinions should be modified or overruled, in so far as they interpret the limitation of the warranty embraced in the deed as well as the declaration of the purpose of the bill as set forth in the opinion on the second appeal. My views were presented to my brothers, who preferred following the former opinions, and this cause has been considered and the opinion prepared in conformity with said former opinions. As the views of the writer were not accepted by the majority of the court, it will serve no useful purpose to incorporate them in this opinion. Moreover there would be no radical change in the result, should the case be treated under my theory of the meaning of the warranty and the limitation thereto.

As we understand from the opinion on the second appeal, the bill, as amended and there considered, was treated as for a recission as to the land for which it was claimed a total failure of the title and for compensation or damages for incumbrances or defects in the title short of a total failure, and this was the theory upon which the case was tried in the circuit court. As to the former, there has been no ouster or loss of any of the land or a total failure of title shown when the bill was filed, which was a condition precedent to a rescission, conceding that the proper demand was made and was not subsequently waived, which is, at present, unnecessary to decide.

As to the second proposition, if the complainant's only remedy was for a breach of the covenant as for defects not fatal to the title and for compensation for the difference in the value of the title bought and the one received, there is no proof that the defects have been at all detrimental to the complainant; it has enjoyed the use and occupation of the land for 15 years, has removed the bulk of the timber therefrom, and to all intent and purpose will never be disturbed in the use and enjoyment of the fee. In other words, while there was a technical breach of the warranty, and the subsequent perfection of the title by use and occupation did not condone the breach, this fact should be and was considered by the trial court in arriving at the damages, and which was found to be nominal, and as to this we cannot put the circuit court in error.

As the limitation to the covenant deals with the land as to which there was a total failure of title, and provides for a rescission and restoration of the purchase price, it was incumbent upon the complainant to prove a failure of title as a condition to relief and which it has failed to do. There has been no eviction as to any of the land, and therefore no breach of the general warranty for quiet enjoyment. Oliver v. Bush, 125 Ala. 534, 27 So. 923.

As to the clouds or incumbrances set forth, whether coming within a warranty of seisin or under a warranty against incumbrances, there may have been shown a technical breach. Maupin on Marketable Title to Real Estate, §§ 109 and 122.

"The covenant of seisin is broken as soon as made, and the covenantee's right of action therein complete, if the covenantor have not, at the time of the covenant, the title therein described. It is obvious, however, that if the covenantee remain in the undisturbed enjoyment and possession of the estate he has suffered no damage from the breach. Possibly he may never be disturbed in the possession, for the real owner may never assert his rights, or they may become barred by the statute of limitations. Accordingly, the rule has been established by numerous decisions that the covenantee can recover no more than nominal damages for a breach of the covenant of seisin, so long as he remains in the undisturbed possession of the estate." Maupin on Marketable Title to Real Estate, § 116, and many cases cited in note 77, p. 292.

If the covenantee's title be perfected by the statute of limitations, he can recover only nominal damages for a breach of the covenant of seisin. Wilson v. Forbes, 13 N.C. 30.

On the other hand, should the defects complained of such as incumbrances and clouds come under the head of a warranty against incumbrances, the same rule as to a technical breach and the measure of damages prevails.

"A covenant against incumbrances, if broken at all, is broken as soon as made. The mere existence of an incumbrance, if it be capable of enforcement, is a breach of the covenant without regard to the probability of its enforcement, though as we shall hereafter see, the plaintiff can recover no more than nominal damages if he has suffered no inconvenience or loss on account of the incumbrances."

" If the breach of the covenant against incumbrances consist in the existence of a pecuniary incumbrance upon the estate the covenantee can recover no more than nominal damages if he has not been disturbed in the enjoyment of the estate or has paid nothing or sustained no loss on account of the incumbrance." Maupin, § 129, and cases cited under note 65.

This rule, however, at law does not prevent a court of equity from providing substantial damages which a covenantee must incur in paying off an incumbrance in the future, meaning, of course, valid and subsisting ones, and not such as may be barred by the statute of limitations or laches. The proof fails to show that any of the so-called incumbrances or defects complained of have caused the complainant any loss in the use and enjoyment of the estate. On the other hand, it shows most conclusively that they will not in the future deprive the complainant of the use and enjoyment of the land, and we agree with the trial court that the complainant was not entitled to recover more than nominal damages.

It is of course, self-evident that a complete record title to...