Beaullieu v. Atlanta Title & Trust Co
| Decision Date | 12 July 1939 |
| Docket Number | No. 27384.,27384. |
| Citation | 4 S.E.2d 78 |
| Court | Georgia Court of Appeals |
| Parties | BEAULLIEU. v. ATLANTA TITLE & TRUST CO. |
Rehearing Denied July 20, 1939.
The measure of damage for a breach by the insurer, under a title insurance policy、 against all loss by reason of any defect affecting the title to real property, where the defect consists of an easement or encroach-ment upon the property, is the difference between the value of the property when purchased as it was with the encroachment or easement thereon, and its value as it would have been had there been no such encroachment or easement on the property.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by C. B. Beaullieu against the Atlanta Title & Trust Company for an alleged breach of a contract of title insurance. Special demurrers to plaintiff's petition were sustained, and plaintiff brings error.
Judgment reversed.
Mitchell & Mitchell and Drennan & Neeson, all of Atlanta, for plaintiff in error.
Tye, Thomson & Tye, of Atlanta, for defendant in error.
C. B. Beaullieu brought suit against The Atlanta Title & Trust Company for an alleged breach of a contract of title insurance to the plaintiff's damage. In the petition plaintiff alleges that he bought from B. P. Hancock a certain described parcel of real estate in the County of Fulton and State of Georgia and contracted to pay therefor the purchase price of $8,000, that the defendant on March 18, 1937, for a consideration of $60 paid to it, issued to plaintiff its title guaranty policy by which it insured the plaintiff against all loss or damage not exceeding $7,000, which the plaintiff should sustain by reason of any defect or defects of title affecting the property which the plaintiff had contracted to purchase, that the plaintiff entered into the possession of the land and after proceeding to build thereon a house early in the month of March, 1937, he ascertained that Mrs. Hal Padgett had an easement in and over the property, that plaintiff notified defendant of this fact, that defendant admitted the validity of the easement and requested plaintiff to allow it to bring suit in plaintiff's name against Hancock in order to minimize the damage which plaintiff had sustained, that plaintiff agreed to this, that on the date of the issuance of the policy the true market value of the property, if unencumbered by the easement, was $15,000, that on this date the true market value of the property, encumbered by the easement, was $5,000, and that in order to extinguish the easement plaintiff would be obliged to purchase the land to which the easement is appurtenant at a cost of $50,000. Plaintiff alleges that the defendant has, on demand of plaintiff, failed and refused to pay the loss which plaintiff sustained by the easement upon the property, to the plaintiff's damage of $7,000, for which plaintiff prays. The defendant filed no general demurrer to the petition, but specially demurred thereto on the ground, among others, that the allegation as to the market value of the property was irrelevant and immaterial and that the plaintiff in alleging his damage to be the difference between the market value of the property, namely, $15,000, without the easement or encroachment thereon, and the value with the easement or encroachment thereon, namely, $5,000, alleges the wrong measure of damage by reason of the defendant's breach of its contract of title insurance, and that the correct measure of plaintiff's damage is the difference between the purchase money of the property, namely, $8,000, and the market value of the property, with the easement or encroachment thereon. The defendant also specially demurred to the allegations in the petition that prior to the purchase of the land plaintiff had been engaged in the business of selling building supplies, that the land purchased was adapted to plaintiff's business, and what land of this character would cost. The court sustained all these demurrers and gave to the plaintiff 20 days in which to amend by alleging damages "in reduction of the price paid according to the relative value of the interest lost", citing Code, § 29-202, and in default of such amendment that the petition should stand dismissed. Before the expiration of the 20 days the court passed a subsequent order amendatory thereof which provided that the case should not stand dismissed in default of an amendment to the petition until 10 days after the remittitur from the appellate court had been made the judgment of the trial court. Plaintiff did not amend the petition in accordance with the order sustaining the demurrers, but on the date of the passage of the second order tendered and had...
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