Copeland v. McAdory

• Decision Date: 22 June 1893
• Parties: COPELAND ET AL. v. MCADORY ET AL.
• Court: Alabama Supreme Court

13 So. 545

100 Ala. 553

COPELAND ET AL. v. MCADORY ET AL.

Supreme Court of Alabama

June 22, 1893

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Willis McAdory and wife against W. B. Copeland and wife to recover damages for breach of warranties in a deed. From a judgment for plaintiffs, defendants appeal. Reversed.

The plaintiffs confessed the plea of coverture as to the defendant Mrs. Copeland. The evidence introduced for the plaintiffs tended to show that the defendant W. B. Copeland sold and conveyed to the plaintiffs a certain lot of land near the city of Birmingham, describing it by metes and bounds, which lot, as described in said deed to plaintiffs comprised a part of one of the streets of Birmingham, and from the possession of which the plaintiffs were evicted by the mayor and aldermen of the city of Birmingham. The defendants derived title to a portion of the property so conveyed by mesne conveyances from the Elyton Land Company which originally owned all of the property in and around Birmingham, and had laid the same off into lots, streets, and avenues. The Elyton Land Company sold this land originally to one Knauff. The deed to Knauff described the land as abutting Ninth avenue. At the time of the sale to the plaintiffs by the defendants the city of Birmingham had not extended its limits so as to comprise Ninth avenue, and the said avenue was not open when the land was sold to the plaintiffs, and the said lot was inclosed by a fence which surrounded the house situated on said property. Afterwards the city of Birmingham extended its limits so as to comprise said avenue and then demanded this property from the plaintiffs, and required them to remove the obstructions off said avenue thereby depriving plaintiffs of 25 feet of their land, which took the entire front yard; and the avenue, as laid off, would have taken a part of the house. The only thing controverted was the amount of damages sustained by the plaintiffs. The plaintiffs introduced testimony tending to show that there was not enough room on the lot left so that the house could be moved back; while the defendants' testimony was in conflict with this.

The defendants requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them: (1) "The court instructs the jury that the plaintiff is not entitled to recover for the value of improvements placed on the portion of land taken by the city." (2) "The court charges the jury that the plaintiff cannot recover in this action for the value of any improvements which the plaintiff placed upon the lot in question, after he purchased the lot from Copeland." (3) "The court charges the jury that the amount which the plaintiff may have expended on the well cannot be charged to the defendant if such expenditures were made after he went into possession after his purchase from Copeland." (4) "If the plaintiff is entitled to recover in this case, then the measure of his damages would be the difference in value of the lot with the avenue on it and its value without the avenue on it, all considered, at the time the plaintiff purchased the land,-land with the interest on the amount from the time of his eviction by the city." (5) "The plaintiff cannot recover as damages the amount that would be required to move the house." (6) "The court charges the jury that it was the right of Copeland to have notice of the claim of the city before the plaintiffs abandoned the same, that he might, if he chose, defend the title which he had made to plaintiffs; and if the jury believe from the evidence that the plaintiffs gave up any of the lots in question, without notifying Copeland of the city's claim, then plaintiffs assume the burden of showing conclusively an outstanding superior title in the city to said property."

Dickinson & Kerr, for appellants.

Lane & White and John Vary, for appellees.

STONE C.J.

The action was commenced against the appellant and his wife to recover damages for alleged breaches of the covenants in a deed of bargain and sale executed by them, conveying to the appellees a certain lot or parcel of land in the city of Birmingham. There was judgment for the wife on her plea of coverture. The trial was had on an amended complaint having three counts. The first of these alleges a breach of the covenant against incumbrances. The second complains of an alleged breach of the covenant that the grantors had good right to convey. The third alleges a breach of the general covenant to warrant and defend. The defect or insufficiency of the title of the grantors, alleged in each count, is that a part of the premises conveyed, particularly described, formed a part of a public street or avenue of the city of Birmingham, having been, prior to the execution of the conveyance, dedicated to the public for such use by the former owner, the Elyton Land Company, when mapping and laying out the city; and that the mayor and aldermen of the city had entered, taking possession thereof, and dispossessing the appellees. Demurrers to each count were interposed, assigning causes which are not very clearly expressed. As we interpret them, the defect or insufficiency in each count charged to exist is that the right and title of the mayor and aldermen is not described with sufficient certainty or particularity, and that it is not shown the appellees were ousted or dispossessed by legal process. The demurrers were overruled, and the order overruling them is the matter of the first assignment of error. In considering the sufficiency of the complaint, we are confined to the causes of demurrer assigned. Though either count may be in any respect insufficient, if not subject to the objections stated, the demurrer was properly overruled. Code, § 2690. The second count is founded on an alleged breach of the covenant of good right to convey the equivalent of a covenant of seisin. In declaring for a breach of the covenant, all that is necessary is to negative the words of the covenant generally. No description of or reference to the outstanding or permanent title is necessary; nor is it necessary to aver an eviction or ouster. The covenant is broken, if at all, as soon as it is made, and not by the occurrence of any future event. The grantor is presumed to know the estate of which he was seised; the fact is peculiarly within his knowledge, and he must plead and prove it. Rawle, Cov. (3d Ed.) 53; Rickert v. Snyder, 9 Wend. 421; Anderson v. Knox, 20 Ala. 156. Whether the existence of a highway over a part of the premises conveyed is a breach of this covenant is not a question raised by the demurrer, and, of consequence, is not now before us. There is a marked distinction is pleading a breach of the covenant of seisin, or of good right to convey and of other covenants. It is not sufficient, in declaring for a breach of the other covenants, to negative merely the words of the covenant. The paramount title or incumbrance, the existence of which is supposed to constitute a breach, must be stated. But it is not necessary nor advisable to enter into any particular description of such incumbrance or title. The statement of it substantially is all that is requisite. Rawle, Cov. 125 et seq. In the notes to 2 Greenl. Ev. §§ 242-244, the form of a count for a breach of the covenant against incumbrances, of quiet enjoyment, and of general warranty will be found. In each count there is no more than the averment that there was at the time of making the deed an outstanding lawful right and title, and in whom it resided. In each of the counts of the complaint in which it was necessary to state the existence of an incumbrance or of a paramount title, that which is relied on as constituting the breach of the covenant is clearly stated; its nature, character, and origin; and in this respect the demurrer was not well taken.

The covenant of freedom from incumbrances, like the covenants of seisin and of good and lawful right to convey, is a covenant in praesenti. It is broken as soon as made if there is an outstanding older and better title, or an incumbrance diminishing the value or enjoyment of the land. Anderson v. Knox, 20 Ala. 156; Andrews v. McCoy, 8 Ala 920; Clark v. Swift, 3 Metc. (Mass.) 390. An eviction or dispossession of the grantee is not a constituent element of the breach. It is the defect of title or the burden of an incumbrance existing when the conveyance is made which works the breach. It is said by Greenleaf: "The covenant of freedom from incumbrance is proved to have been broken by any evidence showing that a third person had a...