Hersey v. Long

• Decision Date: 03 January 1883
• Citation: Hersey v. Long, 30 Minn. 114, 14 N. W. 508 (Minn. 1883)
• Parties: Dudley H. Hersey and others v. Edgar C. Long
• Court: Minnesota Supreme Court

14 N.W. 508

30 Minn. 114

Dudley H. Hersey and others v. Edgar C. Long

Supreme Court of Minnesota

January 3, 1883

Defendant sold to plaintiffs certain logs with warranty of title.Subsequently the Lake Superior & Mississippi Railroad Company recovered judgment against plaintiffs, in an action for conversion of the same logs.Plaintiffs then brought this action on the warranty, in the district court for Washington county, alleging in their complaint due notice by them to defendant of the commencement of the action by the railroad company.

The action was tried before R. B. Galusha, Esq., as referee.On the trial defendant offered to show that Gifford & Averill, a partnership engaged in cutting timber, had cut these logs under a permit from the Lake Superior & Mississippi Railroad Company; that the action by the railroad company against plaintiffs arose out of a misunderstanding between it and Gifford & Averill as to the marking of the logs; that Gifford & Averill, by L. R. Cornman, their attorney, had applied to plaintiffs for leave to defend that action for them, but permission to do so was refused them by plaintiffs.On plaintiffs' objection, this evidence was excluded.The referee ordered judgment for plaintiffs, which was entered and the defendant appealed.Other facts are stated in the opinion.

Judgment affirmed.

Warner & Stevens, for appellant.

The notice to defendant to defend the action commenced by the Lake Superior & Mississippi Railroad Company was insufficient.It should at least have been in writing.2 Smith's Lead, Cas. 801; Rawle on Covenants of Title 221-232; Freeman on Judgments, 181-187; Bigelow on Estoppel, 66; 1 Reeves' Eng. Law, 370;3 Bracton, 135, (178;)Littleton v. Richardson, 34 N.H. 179;Paul v. Witman, 3 Watts & Serg. 407;Somers v. Schmidt,24 Wis. 417;Tuller v. Caldwell,3 Minn. 67, (117.)Assuming that due notice to defendant to defend was established, the refusal by plaintiffs to allow Gifford & Averill to defend operated to cancel and nullify such notice.Altschul v. Polack,55 Cal. 633;Windsor v. McVeigh,93 U.S. 274;Chamberlain v. Preble, 11 Allen, 370.

Marsh, Searles & Nethaway, for respondent.

Verbal notice to defendant to defend the action commenced by the railroad company was sufficient.Robbins v. Chicago City,4 Wall. 657;Blasdale v. Babcock,1 John. 517;Kip v. Brigham,6 John. 158;Chicago City v. Robbins, 2 Black, 418;Barney v. Dewey,13 John. 224;Beers v. Pinney, 12 Wend. 309.

OPINION

Gilfillan, C. J.

The defendant, by an instrument in writing, sold and delivered certain logs to plaintiff.In the instrument was a covenant on his part "to warrant and defend the title to all of said logs against the lawful claims of any person or persons whomsoever."Afterwards the Lake Superior & Mississippi Railroad Company, claiming to have been the owner of the logs at the time of such sale and delivery, brought an action against these plaintiffs for converting them, and recovered judgment against them therefor, whereupon they brought this action for breach of the covenant.The action appears to have been tried on the theory that, to warrant a recovery on the covenant, the plaintiffs must show that they have paid the judgment recovered by the railroad company, and for that purpose they were permitted on the trial, against the defendant's objection, to introduce the receipt of the attorney for the plaintiff in the action by the railroad company, acknowledging payment by the defendants in the action, these plaintiffs.

The covenant was in effect only a warranty of title, and if the defendant had no title to pass by the instrument of sale there was technically an instantaneous breach.Some of the cases hold that to justify a recovery of full damages for the breach, where there has been a delivery of the property by the covenantor to the covenantee, there must be, on the part of the true owner, an enforcement of his title against the covenantee amounting to something analogous to an eviction, such as is necessary to constitute a breach of the covenant of warranty in the case of real estate.Assuming this to be the true rule, still, payment of the judgment was not necessary to plaintiff's full recovery on the warranty; for in the case of real estate the rule as to what in law constitutes an eviction is stated thus: Whenever the superior title "is actually asserted against the covenantee, and the premises claimed under it, and the covenantee is obliged to yield and does yield his claim to such superior title, the covenant to warrant and defend is broken."Allis v. Nininger, 25 Minn. 525.In that case, neither party being in possession, the land being vacant, the true owner sued the covenantee in ejectment, and recovered judgment, but issued no execution.It was held a sufficient eviction; and well it might be, for the bringing of the action was an assertion of the...