Brooks v. Black

• Decision Date: 10 November 1890
• Citation: 68 Miss. 161,8 So. 332
• Court: Mississippi Supreme Court
• Parties: WILLIAM C. BROOKS v. CHARLES E. BLACK

8 So. 332

68 Miss. 161

WILLIAM C. BROOKS v. CHARLES E. BLACK

Supreme Court of Mississippi

November 10, 1890

October 1890

FROM the chancery court of Noxubee county, HON. T. B. GRAHAM Chancellor.

The opinion states the facts.

Decree reversed.

George A. Evans, for appellant.

Our contention is that the measure of damages between the vendee and a remote covenantor is the price paid by the former. As the appellee has been evicted only as to one-fourth of the land, he can only recover one-fourth of the sum paid by him therefor. The cases which declare the measure of recovery to be the value of the land at the time of the ouster, if there has been an advance in the value, are obsolete, having long ago been overruled. The true rule is that the covenantee cannot recover from his grantor more than the covenantor received, nor more than the covenantee paid. Both are limits.

In the multitude of authorities using the language that the sum received is the measure, it will be found that they are cases where the suits were between immediate parties, and where the property has enhanced in value. All the authorities agree that the purpose of the law is to indemnify the loser. The ousted grantee can recover no more than was received by his grantor. That is the limit, because it is presumed that the grantor did not contemplate more; but he cannot recover that much unless it takes that much to indemnify him, or in other words to reimburse him for the whole sum he has paid.

We do not controvert the principle that covenants of warranty run with the land, and the evicted covenantee may sue his immediate vendor, or the first warrantor, or any one along the line; but this seems to be a conclusive reason why a remote vendee can only recover what he has paid; otherwise a remote vendee of land which has been sold many times, and each time for a much less price, may elect to skip over all of the warrantors and sue the first, recovering from him many times more than he paid for the land himself, and many times more than he could recover from his immediate vendor, and many times more than the first warrantor would be liable for if each vendee had in turn sued his immediate vendor, and many times as much as would be required to indemnify everybody. Such a rule would be an encouragement of champerty and maintenance. It is to offer to unprincipled parties a high premium to buy and deal in bad titles. Indeed a bad title might be more valuable to an unprincipled man than a good one, if at any time there had been a covenant by a solvent grantor and the property had depreciated in value.

The position contended for by us is settled as the law in this state. See Dyer v. Britton, 53 Miss. 278; White v Pressley, 54 Ib. 314.

It was error to award Black his attorney's fees for defending the ejectment. It is not pretended that Brooks had any notice to defend. Pressfield v. Stow, 36 Maryland, 151; 9 Rich. 380; 25 Ga. 566; 42 Tex. 418; 9 Lea, 455; 7 Cush. (Mass.) 166; 8 Kan. 276; 15 Iowa 69; 68 Pa. 403.

Brame &amp Alexander, on the same side.

Bogle & Bogle, for appellee.

We think the question as to the measure of damages in a case like this has never been presented to this court before. White v. Pressley, 54 Miss. 313, is the nearest approach to it in our reports, and that does not pretend to decide the question, as in that case the vendee only claimed what he had paid for the land, and, this not being more than the vendor had received, the court said there was no error to the prejudice of the vendor. There is great conflict between the authorities on the subject, and we have not been able to find any court that lays down the rule contended for by appellants, that the measure of recovery is what the vendee paid for the land and no more. That would be allowing parties to speculate on their own wrong. Such a rule besides encouraging parties to speculate on their own wrong would be too uncertain and shifting. Where there have been various transfers at different prices, each particular transfer would be the basis of the measure of damages; and, therefore, the several vendees could not with certainty rely on their warranties. If A. sell to B., and B. to C., and C. to D., who is evicted, and they should each severally sue their immediate vendor upon his warranty, what would be the measure of damages? It must be certain, and the same in each case, and not speculative and shifting.

The chancellor correctly held that Black was entitled to recover what the land was worth at the time of eviction, not to exceed what Brooks received for it; and we can conceive of no fairer rule so far as Brooks is concerned. Both parties are protected.

It is immaterial to the covenantor what his remote covenantee pays for the land. For a certain sum he warrants the title, and his liability is not governed by what the land thereafter may be sold for. The rule we contend for is sanctioned by the better authorities. Dougherty v. Duvall, 9 B. Monroe, 57; Hunt v. Orwig, 17 Ib. 73; Dickson v. Desire, 23 Mo. 151.

Attorneys' fees were properly allowed, notwithstanding no notice was given to the covenanter to defend the ejectment suit. Morris v. Rowan, 17 N.J.L. 304; Pitcher v. Livingston, 4 John. 1; Ryerson v. Chapman, 66 Mo. 557; Robertson v. Lemon, 2 Bush, 301; Cox v. Strade, 2 Bibb, 273; Pikin v. Levitt, 13 Vt. 379; Keeler v. Wood, 30 Ib. 242; Kennison v. Taylor, 18 N.H. 220; Love v. Ferg, 31 Ohio St. 574; Hardin v. Larkin, 41 Ill. 413; Taylor v. Hohter, 1 Mont. 688.

OPINION

COOPER, J.

This is a proceeding by attachment in chancery by the appellee, Black, against his remote vendor, Brooks, to recover damages for the breach of warranty of title to certain lands. In 1869 Brooks conveyed the land, with covenants of warranty, to one Spencer, the consideration being the sum of $ 6296. Spencer executed a deed of trust, with power of sale, to one Smith, to secure the payment of a debt of $ 400 to Graham, Black & Co. In September, 1878, the debt secured being unpaid, the land was sold, as provided by the trust-deed, and at such sale Black, the appellee, became the purchaser, at the price of $ 1000. After his purchase, Black conveyed to Mrs. Spencer an undivided one-half interest in the land. Afterwards, the heirs-at-law of Mrs. Caroline Daves and Mrs. Neilson recovered in ejectment from Black and Mrs. Spencer the undivided one-half interest in the land, claiming under title paramount to that of Brooks. Brooks was not notified of the pendency of this action of ejectment. Black, by the result of that suit, having lost the one- half of his half interest in the land (the one-fourth of the whole), seeks by the present proceeding to recover from Brooks one-fourth of the consideration paid him by Spencer, and interest thereon, and the costs of defending the action of ejectment against the heirs of Daves and Neilson, including attorney's fees. The chancellor found as facts that the title of the heirs of Mrs. Daves and Mrs. Neilson was paramount to that of Brooks; that the value of the land at the time of eviction Was $ 6000; and that Black, in good faith, and in discharge of a legal duty, had defended the action of ejectment, and in so doing had expended in court costs the sum of $ 249.91, and the further sum of $ 200 for attorney's fees, which were reasonable. Upon these facts, he decreed that Brooks should pay to Black the sum of $ 1500, the same being the actual value of the land lost by Black, and less than one-fourth of the purchase price paid to Brooks by Spencer, with interest at six per cent. from January 1, 1888, the date of Black's eviction, and also the said sums of $ 249.91 and $ 200, the court costs and attorney's fees, with interest thereon from the commencement of this suit. Brooks appeals and assigns for error; (1) that the court should have not made any decree against him, because the facts proved show that the debt secured by the deed of trust from Spencer to Smith, trustee, had been paid at and before the sale under said deed; (2) that the measure of damages should be the one-fourth of the purchase price paid by Black, and not the one-fourth of the value of the land at the time of eviction, nor the one-fourth of purchase-money received by Brooks; (3) the court should not have allowed the court costs expended in defending the action of ejectment; (4) the court should not have allowed attorney's fee paid in defending said action.

It is sufficient to say, in reference to the first assignment of error, that the facts do not support appellant's contention.

The second assignment of error presents an interesting question which has never before been considered by this court, and, so far as our researches have led, has not often arisen in other states. That question is, what is the measure of damages, in a suit by an evicted vendee, upon the covenant of warranty of a remote vendor, running with land? May he recover the purchase price received by the remote vendor, or is he limited by the consideration he himself has paid? It is supposed by counsel for the appellant that the sum paid by the evicted party--the value of the land at the time of his purchase--is fixed as the measure of damages in this state by the case of White v. Presly, 54 Miss. 313. But the question was not raised by the record in that case and although Chalmers, J., in delivering the opinion of the court, declares that the sum paid by the evicted party, with interest, the same being less than the sum received by the remote vendor, is a correct measure of damages, the declaration does not thereby become decision. In that case, Huntington had sold land to one Jones, from whom the title had passed under execution sale to Pressly. Pressly lost the land by reason of title paramount to that of Huntington, and sued...