Fritz v. Pusey

• Decision Date: 10 January 1884
• Citation: 18 N.W. 94,31 Minn. 368
• Parties: Adam Fritz v. Pennock Pusey
• Court: Minnesota Supreme Court

18 N.W. 94

31 Minn. 368

Adam Fritz v. Pennock Pusey

Supreme Court of Minnesota

January 10, 1884

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., presiding, refusing a new trial.

Order affirmed.

C. S Bryant and L. E. Thompson, for appellant.

Warren H. Mead, for respondent.

OPINION

Mitchell, J.

This action was brought to recover damages for the alleged breach of covenants against incumbrances and for quiet enjoyment in a deed of conveyance executed by defendant to plaintiff, in February, 1881. The evidence tended to prove that, prior to the execution of this deed, defendant had let the premises to one Colwell for the cropping season of 1881, to be by him worked on shares, Colwell to have two-thirds and defendant one-third of the crops; that Colwell was then lawfully in possession under this contract, and so remained until the autumn of 1881; that plaintiff, after obtaining his deed demanded possession from Colwell, who refused to surrender but asserted his right of possession adversely to plaintiff and that, by reason of such paramount title or right, plaintiff was unable to obtain possession until the fall of 1881, thus losing the use of the premises for that entire season.

It is immaterial whether or not this contract between defendant and Colwell created the conventional relation of landlord and tenant. Under it Colwell was entitled to the use and exclusive possession of the premises to the exclusion of plaintiff. This outstanding lease or contract in favor of Colwell constituted a breach of both covenants. An "incumbrance," within the meaning of the covenant against incumbrances, includes any right or interest in the land which may subsist in third persons to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance. Rawle on Covenants, 94, 95; 2 Greenl. Ev. § 242; Bouv. Law Dict. tit. "Incumbrance;" Prescott v. Trueman, 4 Mass. 627. Hence, an outstanding lease is an incumbrance. Grice v. Scarborough, 2 Spear, (S. C.) 649; Batchelder v. Sturgis, 3 Cush. 201; Porter v. Bradley, 7 R.I. 538.

By reason of plaintiff's inability to obtain possession on account of this outstanding paramount right, there was also a breach of the covenant for quiet enjoyment. It is urged that there was no breach of this covenant because there was no eviction; the position of counsel, if we understand it correctly, being that there must have been an actual expulsion by process of law. As the measure of damages would be the same in this case for a breach of either covenant, the question is not, perhaps, material, for the two covenants are here cumulative, and a breach of one is sufficient. But the position of counsel is not correct. It is generally stated that "an eviction is necessary to a breach of the covenants for quiet enjoyment or of warranty;" and no doubt the original and technical meaning attached to the word "eviction" was an expulsion by the assertion of a paramount title, and by process of law. But the idea that the ouster must be by process of law has been long since abandoned. The rule now is that these covenants are broken whenever there has been an involuntary loss of possession, by reason of the hostile assertion of an irresistible title. Moreover, the eviction may be constructive. Constructive eviction is deemed to be caused by the inability of the purchaser to obtain possession by reason of the paramount title. When, at the time of the conveyance, he finds the premises in...