Hunt v. Nolen

• Decision Date: 20 April 1896
• Court: South Carolina Supreme Court
• Parties: HUNT et al. v. NOLEN et al.

24 S.E. 543

46 S.C. 551

HUNT et al.

v.NOLEN et al.

Supreme Court of South Carolina.

April 20, 1896.

Breach op Warranty—Damages—Equitable Actions.

1. Act 1824, p. 24, § 4, as amended in 1879, providing that in an action on a covenant the measure of damages shall be the amount of the purchase money "from the time of eviction, " has reference only to cases of actual eviction, and does not apply to an action for breach of warranty by failure of title to a part of the land conveyed, the grantee never having had possession of such portion.

2. In an action on the equity side of the court, for foreclosure, where a partial failure of consideration, arising out of the transaction in which the mortgage was given, is pleaded as a defense, the issues are all equitable; and, in deciding them, the court will apply the liberal rules of equity.

Petition for rehearing. Dismissed.

For original opinion, see 24 S. E. 310.

PER CURIAM. The respondents have filed a petition for a rehearing of this case upon certain grounds hereinafter considered.

1. The first of these grounds is because, it is submitted, the court overlooked the fact that while the deed from plaintiffs to Nolen was executed on the 15th of July, 1889, the contract was that Nolen was not to take possession until the 1st day of July, 1890; and that, therefore, the measure of damages would be the value of the 30 1/4 acres, with interest from 1st of January, 1890 (such date being the time of eviction), and not from the delivery of the deed. The "first answer to this argument is that Nolen did not get possession of the 30 1/4 acres on the 1st of January, 1890, nor at any other time; and, therefore, there has been no eviction therefrom. Eviction presupposes possession. The act of 1824, ¹ which affirmed the rule of the common law, provides as follows: "In any action or suit for reimbursement or damages upon covenant or otherwise, the true measure of damages shall be the amount of the purchase money at the time of alienation, with legal interest." In 1879 this act was amended by adding the words "from the time of eviction" at the end of said act There has not been, and there cannot be, an eviction in this case, because the grantors were not possessed of the 30 1/4 acres, which did not exist. The amendment to the act of 1824 by the additional words in 1879 has no application to this case. The act of 1824, as amended, has reference to an actual eviction, which, as we have said, cannot take place in this case. Earle v. Middleton, Cheves, 127. The breach of the covenant of warranty took place when the deed was delivered. To allow Nolen interest on the value of the 30 1/4 acres from the time when the deed was delivered till the 13th of January, 1890, when Nolen paid the sum of $1,-400, at the rate specified in the mortgage, amounts to the same thing as to deduct the value of the 30% acres from the purchase money when the deed was delivered. But whether the interest is calculated at 10 or 7 per cent till the 13th of January, 1890, the amount then paid by Nolen more than extinguished the said mortgage; and from that time the plaintiffs did not have a valid claim against Nolen for any part of the purchase money of said land. The language of Mr. Chief Justice McIver in Lowrance v. Robertson, 10 S. C. 32, is applicable to this case when he says: "For, if a person sells land for which he has no...