Allen v. Miller
| Decision Date | 20 March 1911 |
| Docket Number | 14,524 |
| Citation | 99 Miss. 75,54 So. 731 |
| Court | Mississippi Supreme Court |
| Parties | S. L. ALLEN v. R. N. MILLER ET AL |
APPEAL from the chancery court of Copiah county, HON. H. CASSIDY Special Judge.
Suit by R. N. Miller against S. L. Allen et al. From a judgment overruling a demurrer to the bill defendant, Allen, appeals.
Affirmed and remanded.
D. M Miller, for appellant.
It is well settled in this state that the covenantee may purchase a paramount title which is being asserted against him, and under which he must ultimately be evicted. This amounts to a constructive eviction and he may sue upon the covenant. See Kirkpatrick v. Miller, 50 Miss. 521; Dyer v Brittain, 53 Miss. 270; Cummings v. Harrison, 57 Miss. 275.
The covenantee may recover in such action the full amount expended by him in good faith in protecting the title conveyed to him by his warrantor, and other such damages as he has sustained, not exceeding the purchase money together with interest thereon. See Holloway v. Miller, 84 Miss. 776; Brooks v. Black, 68 Miss. 161.
We contend that since the sale made by Willing, substituted trustee, was void, Lyell, trustee, or the Bank of Wesson, having paid the mortgage company debt, then Lyell, trustee, became the equitable assignee of that debt and is subrogated to all rights of the original cestui que trust, and through the subsequent conveyances from Lyell to Miller and from Miller to Allen, this equitable right passed to Allen. Allen, who is in possession of the land, under his warrantor, Miller, and his remote vendors, Lyell, Bank of Wesson and Earnes, is the only person who can enforce such equitable right in a court of equity. See Bonner v. Lessley, 64 Miss. page 392; 56 Miss. 553.
Allen, as the equitable assignee of the original mortgage debt had a right to use this claim in the settlement with Tillman, as doubtless he did, and so long as he acted in good faith with Miller, such use of the debt cannot be questioned.
We contend that all the rights, both legal and equitable to the land passed from Miller under his deed to Allen, and that Miller cannot assert this claim against Allen as a set-off to the damages suffered by Allen by reason of the failure of warranty in Miller's deed. For this reason we maintain that the court should have sustained the demurrer of Allen to the bill of complaint and that it was error for the court to overrule the demurrer. For this reason, we think the decree of the chancellor should be reversed.
R. N. Miller, for appellee.
Miller files his bill in the chancery court and enjoins Allen's suit at law, and tenders Allen the incumbrance, that is, asks that demand of Allen against him be offset against the debt fixed by the decree, held by Miller. Miller is not setting up the decree or incumbrance against Allen, except so far as is necessary to discharge his liability under his covenant of warranty to Allen.
The law of the case is simple. It cannot be disputed that neither Miller nor Allen could acquire an outstanding title or incumbrance and set it up to defeat the rights of the other to the title warranted. Kirkpatrick v. Miller, 50 Miss. and a number of other similar cases.
In the first place, Allen could not sue Miller at all for the money by him paid out to Tillman because he did not buy from Tillman the paramount title, and it is perfectly well settled that the vendee in buying an outstanding title is bound to act in good faith with his vendor and he must buy the title which is not only paramount to his own title, but it must be paramount to the title of everybody else to the land. Dyer v. Britton, 53 Miss 270; 11 Cyc. 1125, note 98, and cases cited.
"In order to constitute a breach of covenant of warranty the title or right to which the covenantee yields must be not only paramount to his own title or right but must be paramount to that of anyone else." 11 Cyc. supra.
There is a distinction between setting up an outstanding title by a covenantor and asking credit for it by way of discharge of his covenant, which counsel for the appellant seems to have overlooked. I repeat I am not setting up this decree as against Mr. Allen's title; I am simply asking that it be offset against his demand against me for breach of covenant. If I had bought an outstanding title and the paramount title, and thus making my warranty good.
On account of the peculiar facts of this case, I have only been able to find one case precisely like it. And that is Pres. Fellows of Middleburg College v. Joseph Cheny, 1 Vermont 336.
Argued orally by R. N. Miller, for appellant.
The appellant, S. L. Allen, brought suit against R. N. Miller in the circuit court of Copiah county for a breach of warranty of title to land. Miller filed a bill in the chancery court of Copiah county, enjoining the suit at law, to which bill Allen demurred, and which demurrer was overruled by the chancellor, and from that decision, overruling the demurrer, Allen appeals to this court.
To have a clear conception of the legal points involved, it is necessary to give some of the leading facts. In 1892 W. A. Tillman negotiated a loan of money from the British & American Mortgage Company, executing a deed of trust to it upon certain lands to secure the payment of the loan. Default in payment was made in January, 1897. The amount then being due was five hundred and seventy-five dollars. The mortgage company desired to execute the trust. The original trustee being a nonresident and refusing to act, another was appointed substituted trustee in writing; but unfortunately this appointment of substituted trustee was not filed for record until after the sale was made. At the sale of the property, the mortgage company bid the land in for the amount of the mortgage debt; the substituted trustee executing to it a deed of conveyance. On September 19, 1900, the mortgage company sold the land to one E. A. Earns, executing a special warranty deed. Some time afterwards, Earns went into bankruptcy, conveying the land to J. G. Lyell, trustee, who in turn sold the land to R. N. Miller, on the 24th day of August, 1901. Soon thereafter R. N. Miller conveyed the land to S. L. Allen for the consideration of nine hundred dollars, executing and delivering to Allen a deed of conveyance containing a covenant of warranty. Under this deed Allen went into possession of the land, and has been in possession continuously since. It appears that all of these conveyances were for about the same consideration, that being the amount of the balance of the debt due by Tillman.
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