Flood v. Graham

• Decision Date: 08 February 1911
• Citation: 61 Fla. 207,54 So. 456
• Parties: FLOOD v. GRAHAM.
• Court: Florida Supreme Court

54 So. 456

61 Fla. 207

FLOOD v. GRAHAM.

Florida Supreme Court, Division A.

February 8, 1911

Error to Circuit Court, Hillsborough County; J. B. Wall, Judge.

Action by E. O. Flood against John A. Graham. Judgment for defendant, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

A covenant in a deed, 'that the said premises are free and discharged from all taxes, tax titles or certificates judgments, mechanics' liens and incumbrances of any kind whatsoever,' is sufficiently broad to warrant and support an action at law, wherein the declaration alleges that, at the time of the delivery of such deed, the lands therein described and thereby conveyed were not free and discharged from all liens and incumbrances of any kind whatsoever, but the same were subject to a right in a certain named company 'to enter upon said lands and enjoy the benefit of the oil and asphalt rights therein for a period of ten years' from a certain specified date, and it is error to sustain a demurrer to such declaration or grant a motion to strike out the allegations as to the damages suffered (citing Words and Phrases, vol. 4, pp. 3519-3527; vol. 2, p. 1694).

COUNSEL Wall & McKay, for plaintiff in error.

Sparkman & Carter, for defendant in error

OPINION

SHACKLEFORD J.

The plaintiff in error, as plaintiff in the court below instituted an action at law against the defendant in error in which the following declaration was filed:

'And now comes E. O. Flood, the plaintiff, by Wall & McKay, his attorneys, and complains of John A. Graham, the defendant.

'For that whereas, on or about the 15th day of June, A. D. 1906, the said plaintiff purchased of and from the said defendant for the sum of thirty-eight hundred sixty-four ($3,864.00) dollars, certain lands situate in the county of De Soto of the state of Florida, and a more particular description of which is to be found in a certified copy of the deed from the defendant and his wife to the plaintiff, hereto attached, and marked 'Exhibit A,' and made a part of this declaration; and whereas, the said lands were so purchased by the plaintiff from the said defendant for the purpose of resale at a profit, to the Charlotte Harbor & Northern Railway Company, a corporation organized and existing under the laws of the state of Florida, which said purpose of resale by the plaintiff to the said railway company was well known to the defendant; and whereas, on or about the said 15th day of June, A. D. 1906 in the county of Hillsborough, state of Florida, said defendant, joined by his wife, Nina H. Graham, did execute, acknowledge and deliver to the plaintiff warranty deed covering said lands, and did thereby convey the same to the plaintiff, and in and by said deed did covenant and agree with the plaintiff that the said lands were then and there free and discharged from all liens and incumbrances of any kind whatsoever.

'And the said plaintiff avers that at the time of the delivery of said deed in the county of Hillsborough, state of Florida, as aforesaid, said lands were not free and discharged from all liens, incumbrances of every kind whatsoever, but the same were subject to a right in the Florida Land & Improvement Company to enter upon said lands and enjoy the benefit of the oil and asphalt rights therein for a period of ten (10) years from the 15th day of August, A. D. 1905.

'And the said plaintiff further avers that he had contracted with the said Charlotte Harbor & Northern Railway Company to convey said lands to it free and discharged of all liens and incumbrances whatsoever, at the price of four ($4.00) dollars per acre, but that on account of the existence in the said Florida Land & Improvement Company of the oil and asphalt rights in said lands, as aforesaid, the said railway company refused to pay to the plaintiff the said sum of four ($4.00) dollars per acre, and would not accept a conveyance of said lands only at a reduced price of three and 25/100 ($3.25) dollars per acre.

'And the plaintiff further avers that by reason of the existence of said right to the oil and asphalt in said lands in the Florida Land & Improvement Company, as aforesaid, there was a breach of the defendant's warranty of said lands, as being free and discharged of all liens and incumbrances, and he was damaged thereby in the sum of sixteen hundred eighty ($1,680.00) dollars, and he has also been deprived of the interest thereon from the 20th day of June, A. D. 1908, and he therefore brings suit against said defendant, and claims damages in the sum of five thousand ($5,000.00) dollars.'

The covenants in the deed upon which the action is based are as follows; a certified copy of such deed being attached to and made a part of the declaration:

'And the said parties of the first part for themselves and their heirs, executors and administrators do covenant and agree with the said party of the second part, his heirs, executors, administrators and assigns, that they are lawfully seised of the said premises in fee simple, and have good right to sell and convey the same to the said party of the second part; that the said premises are free and discharged from all taxes, tax titles or certificates, judgments, mechanics' liens and incumbrances of any kind whatsoever; and that they will, and their heirs shall, warrant and defend the same to the said party of the second part, his heirs and assigns forever, against the lawful claims and demands of all persons.'

To this declaration the defendant filed the following motion:

'Now comes the defendant in the aboveentitled cause and moves the court to strike from the declaration of the plaintiff that paragraph on page 2 beginning with the words 'And the said plaintiff further avers' down to the words 'per acre,' for the reason that the allegation is immaterial, irrelevant to the plaintiff's cause of action, and tends to embarrass a fair trial of said cause for the reason that the damage claimed in said paragraph is not proper damage for a breach of the defendant's covenants; the true measure of damages being the difference between the value of the lands without the reservations of oil and asphalt rights and the value of the lands with said rights existing.'

The defendant also interposed the following demurrer:

'Now comes the defendant in the above-entitled cause, and says that the declaration filed by the plaintiff is bad in substance and in law, and demurs thereto.

'For good and substantial matters of law to be argued to the court, the defendant states the following:

'(1) That the reservations of the oil and asphalt rights by the Florida Land & Improvement Company does not constitute a breach of the covenants of warranty.

'(2) That the declaration fails to allege that there was any oil or asphalt on the land and tenements described.

'(3) Even if there was any oil or asphalt rights on the lands and the reservation thereof constituted a breach of the defendant's covenants against incumbrances, the measure of damages would be the difference in the value of the land without such reservations and its value with such reservations, and not the difference in price which the plaintiff sold the land to the Charlotte Harbor & Northern Railway.'

The court granted the motion and sustained the demurrer, and, the plaintiff declining to amend, entered final judgment against the plaintiff. The correctness of these rulings is challenged by a writ of error, which the plaintiff had issued to such judgment.

The assignments of error may be considered together, since practically they raise the same question and present the same point for determination. Is the covenant in the deed in question, 'that the said premises are free and discharged from...