Hawthorne v. City Bank of Minneapolis

• Decision Date: 19 December 1885
• Citation: 34 Minn. 382
• Parties: E. P. HAWTHORNE <I>vs.</I> CITY BANK OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

Page 382

34 Minn. 382

E. P. HAWTHORNE vs. CITY BANK OF MINNEAPOLIS.

Supreme Court of Minnesota.

December 19, 1885.

On November 13, 1879, the defendant, being then the owner of certain land, conveyed the same in fee to the plaintiff by a warranty deed containing a covenant that the land was free from all incumbrances, the expressed and real consideration for such conveyance being $650, which was fair and adequate. At the time of such conveyance the land was subject to the lien of a certain docketed judgment for the sum of $2,045.88, against one Waldron, who had been the owner of the land, but the existence of such lien was unknown to plaintiff and defendant. After the conveyance to plaintiff, the land was sold under the judgment, and the plaintiff was compelled to and did redeem the same by paying the sum of $3,347.33, on December 17, 1884. After plaintiff purchased the land, and before he discovered that the same was incumbered, he made improvements thereon amounting to the sum of $3,500, and the premises are now worth $8,000.

Upon the above facts, (which were admitted,) the plaintiff brought this action in the district court for Hennepin county, to recover $3,500, his expense and damage in removing the lien of such judgment. The action was submitted upon the above admitted facts to Lochren, J who ordered judgment for plaintiff for the amount of the purchase price, $650, with interest from December 17, 1884. Plaintiff appeals from an order refusing a new trial.

Arthur N. Jordan, for appellant.

Atwater & Hill, for respondent.

MITCHELL, J.

The question involved in this appeal is the construction to be given to Gen. St. 1878, c. 40, § 35, which reads: "Whoever conveys real estate by deed or mortgage containing a covenant that it is free from all incumbrances, when an incumbrance appears of record to exist thereon, whether known or unknown to him, shall be liable, in an action of contract, to the grantee, his heirs, executor, administrator, successors, or assigns, for all damages sustained in removing the same." Appellant claims that this was intended to change the rule which limited the measure of damages for a breach of the covenant by the consideration money for the conveyance. On the other hand, respondent claims that the object of the statute was to declare, contrary to what was the prevailing doctrine of the American courts, that an action on a covenant against incumbrances might be maintained by the assignee of the grantee. If either of...