Dallas Compress Co. v. Liepold

• Citation: 88 So. 681,205 Ala. 562
• Decision Date: 21 April 1921
• Docket Number: 2 Div. 723
• Parties: DALLAS COMPRESS CO. v. LIEPOLD et al.
• Court: Supreme Court of Alabama

88 So. 681

205 Ala. 562

DALLAS COMPRESS CO. v. LIEPOLD et al.

2 Div. 723

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, Dallas County; B.M. Miller, Judge.

Bill by the Dallas Compress Company against Julius Liepold and others to subject certain property to the satisfaction of a judgment and for general relief. The bill was filed against Julius Liepold and Samuel A. Summers as executors of the last will and testament of Bertha Liepold and as individuals. Jeannetta Summers was also made a party respondent. From decree sustaining demurrers to the bill, complainant appeals. Affirmed.

Keith &amp Wilkinson, of Selma, for appellant.

Pitts &amp Leva and J.R. Satterfield, all of Selma, for appellees.

McCLELLAN J.

This bill was filed by appellant against appellees. The demurrer of the respondents was sustained by the court. The theory and design of the bill will be sufficiently indicated by the facts to be recited, summarily, together with the prayer for relief.

On April 3, 1884, Edward Ikelheimer sold and conveyed to the Selma Press & Warehouse Company the lots described in the bill. The deed bore these covenants:

"And the said party of the first part [Ikelheimer] hereby covenants and agrees to and with the said party of the second part, that he is seized in indefeasible fee of the above-granted premises; and that the title thereto and the quiet possession and enjoyment thereof as against all persons whatsoever lawfully claiming the same unto the said party of the second part, and its successors, he hereby warrants and will forever defend."

On April 19, 1904, the Selma Press & Warehouse Company conveyed the property in question to the Dallas Compress Company, the complainant (appellant). That conveyance bore these covenants:

"And said party of the first part does hereby covenant with said party of the second part, its successors and assigns, that it is lawfully seized in fee of the aforegranted premises; that they are free from all incumbrances; that it has good right to sell and convey the same to said party of the second part, as aforesaid; and that it will warrant and defend the same to said party of the second part, its successors and assigns, forever, against the lawful demands of all persons."

It is averred in the bill (third paragraph) that on July 28, 1887 Edward Ikelheimer, by deed reciting love and affection and one dollar as a consideration, conveyed other real property in Selma to Bertha Dublon (the grantor's niece), who afterwards married Julius Liepold, one of the respondents. The exhibit (C) of this conveyance shows it was executed and acknowledged, not in 1887, as erroneously stated in the bill, but on July 28, 1877, 10 years earlier and prior to the date of the conveyance to the Selma Press & Warehouse Company. It was filed for record on February 7, 1888.

On October 21, 1887, Ikelheimer conveyed to Bertha Dublon (the grantor's said niece) another lot or parcel of land in Selma, the consideration being recited as love and affection and $1. This conveyance was filed for record February 7, 1888.

Edward Ikelheimer died in the city of Selma on, to wit, January 18, 1888, leaving a last will, which was promptly, duly probated. In this will the testator devised to his said niece, Bertha Dublon, other real property in Selma. Bertha Dublon Liepold, died in April, 1919, devising the aforesaid real property to Julius Liepold and Jeannetta C. Sommers. At the time of her death Bertha Dublon Liepold was in possession of the real property described in the deeds mentioned above, and that devised to her by the will of Edward Ikelheimer; and Julius Liepold and Jeannetta C. Sommers have succeeded, under her will, to her possession of these properties.

The bill avers that at the time Edward Ikelheimer executed the conveyance to the Selma Press & Warehouse Company, in 1884, he in fact only owned the life estate of Marie L. Smith in the property conveyed to the Selma Press & Warehouse Company, and hence only conveyed to that company the said life estate; and Marie L. Smith (the said previous owner of the life estate) having died in September or October, 1919, the bill avers that the "covenant of warranty of title or covenant for the possession and quiet enjoyment contained in the said deed from Edward Ikelheimer to the Selma Press & Warehouse Company, through whom [which] your orator deraigned title, *** were broken or breached to the damage of your orator in the sum of $20,000.00," the antecedent allegation being that upon the death of Marie L. Smith, the remainderman, J.Q. Smith, demanded the possession of the property, whereupon the Dallas Compress Company, from obvious necessity, purchased from J.Q. Smith, his superior, paramount title in remainder, which had been established in the litigation reported in 190 Ala. 423, 67 So. 289; 195 Ala. 534, 70 So. 662; 202 Ala. 193, 79 So. 565, for the sum of $15,000 in cash. It is also averred that the complainant duly and seasonably filed in the office of the judge of probate a claim for $20,000 against the estate of Bertha Dublon Liepold, deceased, noting in the claim filed that the said Bertha was the donee or devisee, or both, from Edward Ikelheimer of the property before mentioned. The prayer, so far as presently important, is as follows:

"That this cause be referred to the register of this court, or that it be determined by the court, the damage done your orator by the breach of said warranty of title or covenant for possession and quiet enjoyment, and that a judgment be rendered against the estate of the said Bertha Liepold for such sum as may be found due to your orator therefor.

"That the said described property belonging to the said Bertha Liepold at the time of her death and conveyed to her by deed of gift and by will devised to her by the said Edward Ikelheimer, or such part thereof as may be necessary, be subjected to the satisfaction of said judgment; and that a lien be fixed and declared on said property, and that the same be sold under the orders and direction of this court for the satisfaction of such damages or judgment as may be determined.

"And if your orator has not asked for the proper relief, it hereby submits itself to the jurisdiction of this honorable court, and offers to do equity towards all parties to this suit, and prays for such other, further, general, special, and appropriate relief as the nature of the cause demands and as to your honor may seem meet and proper, for which it is in duty bound, to ever pray," etc.

The demurrer, through special grounds, addressed to the bill as a whole (in addition to that asserting a want of equity in the bill), are:

"(2) That it does not appear from the bill of complaint that the claim of complainant was ever presented against the estate of said Edward Ikelheimer, and no legal reason is shown why such presentation was not made.

"(3) That the warranty of title and quiet enjoyment in the deed from said Edward Ikelheimer to said Selma Press & Warehouse Company is limited and restricted to said grantee and its successors, and the complainant is neither the grantor nor its successor."

The fourth ground of the demurrer, addressed to a part of the bill, is:

"That it does not appear from the bill of complaint that said Bertha Liepold or her executors were ever under obligation to pay said claim."

The fifth ground of the demurrer, addressed to the feature of the bill claiming $20,000 as damages for the breach averred, is:

"That the measure of damages, if any, is the amount of money paid to said Edward Ikelheimer by said Selma Press & Warehouse Company [i.e., about $2,600], with interest thereon from the date of the death of said Marie L. Smith."

The basis of complainant's (appellant's) assertion of right to relief is the breach of the warranty of title, or for quiet enjoyment in the Ikelheimer deed of date April 3, 1884, to the Selma Press & Warehouse Company, its grantor, resulting from the fact that the warehouse company's grantor held and could convey only a life estate, not the fee, as was the design of his deed. Ikelheimer's grantee went into rightful possession of the property; continued so until 1904, when his grantee conveyed to the complainant (appellant), which thereupon went into rightful possession, and thereafter remained in rightful possession until the falling in of the life estate of Marie L. Smith, in September or October, 1919, whereupon the right of the established remainderman to the possession became perfected, and complainant was obliged to surrender possession or purchase the outstanding title of the remainderman. A general covenant warranting title is, in essence and effect, a covenant for quiet enjoyment. Caldwell v. Kirkpatrick, 6 Ala. 60, 62, 41 Am.Dec. 36; Oliver v. Bush, 125 Ala. 534, 27 So. 923; Musgrove v. Cordova Land Co., 191 Ala. 419, 421, 67 So. 582, among others delivered here. The general covenant of warranty being equivalent to a covenant for quiet enjoyment, "an assurance against the consequences of a defective title" (6 Ala. 62, 41 Am.Dec. 36), it is prospective in operation. Thomas v. St. Paul's Church, 86 Ala. 138, 144, 5 So. 508; Durbin v. Shenners, 133 Wis. 134, 113 N.W. 421. Such a covenant is not breached until there has been an eviction, actual or constructive. Caldwell v. Kirkpatrick, supra; Oliver v. Bush, supra; Musgrove v. Cordova Land Co., supra, among others.

The possession of the lots having been taken by the grantee in the deed from Ikelheimer, on April 3, 1884, and continuing in that grantee's grantee, this complainant, under the conveyance to it of date April 19, 1904--all in virtue of the life estate of Marie L. Smith thereby in fact alone conveyed--the covenant of warranty of title or for quiet enjoyment was not breached until the eviction...