Katzenberger v. Bryan
| Decision Date | 26 April 1965 |
| Citation | 141 S.E.2d 671,206 Va. 78 |
| Court | Virginia Supreme Court |
| Parties | Walter M. KATZENBERGER et al. v. Stanley G. BRYAN. |
Walkley E. Johnson, Jr., Norfolk (Baird, Crenshaw & Ware, Norfolk, on brief), for plaintiffs in error. Fred E. Martin, John F. Rixey, Norfolk (Fred E. Martin & Son, Rixey & Rixey, Norfolk, on brief), for defendant in error.
Before EGGLESTON, C. J., and BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
Walter M. Katzenberger and Ruth C. Katzenberger, the plaintiffs, filed a motion for judgment against Stanley G. Bryan, the defendant, seeking to recover damages in the sum of $17,000.00.
The motion for judgment alleged that the plaintiffs had employed the defendant, an attorney-at-law, to examine and certify to them the title to property which they had contracted to purchase; that the defendant reported to the plaintiffs that marketable title to the property was vested of record in William E. Parker and Jeanne C. Parker; that, relying upon the defendant's assurances and certification of title, the plaintiffs purchased the property from the Parkers and accepted a deed thereto; that, as a result of his negligence, the defendant failed to discover and report that the Parkers did not own that portion of the property which provided access to the residue, and that because they had paid for property to which they did not receive title and had expended money for improvements on the residue, to which they had no access, the plaintiffs were damaged.
The defendant filed a response admitting his employment as asserted by the plaintiffs but denying liability for the damages allegedly sustained by them.
The defendant also filed a plea of accord and satisfaction, alleging that the plaintiffs had instituted an action against the Parkers, the grantors in their deed, to recover damages for breach of warranty; that the Parkers had paid the plaintiffs $1500.00 in settlement and satisfaction of that claim; that the action against the Parkers had been dismissed 'agreed', and that the settlement of the action against the Parkers constituted an accord and satisfaction of the claim against the defendant and was a bar to further proceedings in the action brought against him.
The trial court heard argument on the defendant's plea of accord and satisfaction, and dismissed the plea, over the objection and exception of the defendant.
At a pre-trial conference, the defendant again sought to have the trial court sustain his plea of accord and satisfaction but the court refused to do so. A jury trial was then held and the court excluded all testimony relating to the plaintiffs' settlement with the Parkers. The jury returned a verdict in favor of the plaintiffs in the sum of $3750.00.
The defendant moved the court to set aside the verdict and award him a new trial on the ground that the verdict was contrary to the law and the evidence. The defendant also moved that his plea of accord and satisfaction be sustained.
The trial court set aside the verdict of the jury, sustained the plea of accord and satisfaction and awarded summary judgment in favor of the defendant. The plaintiffs were granted a writ of error to the final order embodying the court's action.
The evidence shows that the plaintiffs, on July 8, 1960, entered into a written agreement with the Parkers for the purchase, for $3000.00, of Lot 35 on the plat of Milburn Manor, located in Princess Anne County (now the City of Virginia Beach).
The only public road abutting the property was Davis Street, a dead-end street. Access to the street was available only over the westerly 25 feet of the lot. A drawing is attached to provide a better understanding of the physical layout of the property in dispute.
After the plaintiff employed the defendant to examine the title to the property, he was informed by Mrs. Parker that she and her husband owned not only Lot 35, but also the easterly 25 feet of Lot 36. The defendant prepared a general warranty deed which was executed by the Parkers, conveying to the plaintiffs all of Lot 35 and the easterly 25 feet of Lot 36. The plaintiffs made settlement of their purchase and the defendant delivered the deed to them. No additional compensation was paid by the plaintiffs for the portion of Lot 36 which they received.
According to the plaintiffs' evidence, the defendant assured them that the title to the property was good. Relying on such assurance, the plaintiffs commenced erection of a dwelling on the erar of Lot 35. When the building was substantially completed, it was discovered that the westerly 25 feet of Lot 35 and the easterly 25 feet of Lot 36 were owned, not by the plaintiffs, but by one of their neighbors who owned the land adjoining Lots 35 and 36 on the north.
Lots 35 and 36 had previously been owned by May P. McDilda, a predecessor in title of the Parkers, the plaintiffs' grantors. In 1955, five years prior to the plaintiffs' purchase, Mrs. McDilda had conveyed the 25 foot strips of Lots 35 and 36 to the owner of the property adjoining the lots on the north. The defendant admitted that he failed to discover this conveyance in his title examination.
The plaintiffs attempted to purchase the property in dispute but were unsuccessful in their efforts. For access to their property, they used the portion of the 25 foot strip of Lot 35 adjacent to Davis Street. However, Mr. Katzenberger, one of the plaintiffs, testified that he had been told by the owner of the 25 foot strip that he was 'to stop that, that my driveway was on his property.'
The plaintiffs' evidence showed that the value of their property with the 25 foot strip of Lot 35 included was $13,400.00 but that its value without access to the street was only $6500.00. The plaintiffs also produced evidence tending to indicate that the value of the 25 foot strip, measured according to its relative value to the whole tract, was $350.00.
There is no question before us as to the negligence of the defendant in failing to discover and report that the Parkers did not own the westerly 25 feet of Lot 35. The only question presented is whether the trial court erred in sustaining the defendant's plea of accord and satisfaction.
The plea of accord and satisfaction and the trial court's action with respect thereto were based upon the allegations of the motions for judgment filed in the two cases under consideration. In the motion for judgment filed against the Parkers, the plaintiffs alleged that they were damaged because they were 'without legal title to a portion of the property purported to be conveyed' and were 'without lawful means of ingress and egress' and were 'in danger of being deprived of the use and enjoyment of the entire property.'
In the motion for judgment which they filed against the defendant, the plaintiffs alleged that they were damaged because they were 'caused to spend a large sum of money for property to which they did not receive legal title' and to expend 'large sums of money in the erection of improvements on property to which they did not have lawful means of ingress and egress.'
The plaintiffs contend that in their action against the Parkers, their recovery, had the case been tried, would have been limited to 'the prorata portion of the purchase price attributable to the property in which title actually failed.' The true measure of damages in such a case, the plaintiffs say, is as laid down in Otey v. Oakey, 157 Va. 314, 160 S.E. 8:
'If a title is found defective as to a part of the land, the vendee is entitled to damages for that part lost according to its relative value to the whole tract at the time of the conveyance. * * *' 157 Va., at p. 321, 160 S.E. at p. 10.
The plaintiffs further say that they could not have recovered, in their ex contractu action against the Parkers, any damages for the diminution in value of the residue of the land occasioned by the loss of ingress and egress nor could they have recovered anything for the resulting reduction in the value of the improvements which they placed on the land. These latter elements of damage, the plaintiffs assert, were properly recoverable only in their tort action against the defendant.
Thus, the plaintiffs argue, their settlement with the Parkers for $1500.00 'was for items of damage decidedly distinct from those proved' against the defendant and such settlement did not bar them from pursuing their action against the defendant. The trial court was in error, therefore, say the plaintiffs, in sustaining the plea of accord and satisfaction.
The defendant, on the other hand, contends that because the plaintiffs alleged in their case against the Parkers that they were damaged by the loss of land and legal access to the residue of Lot 35, and settled their claim for those damages, they are estopped to deny that they had a claim against the Parkers for the damages occasioned by the diminution in value of the residue of the land. Such settlement, the defendant argues, bars the plaintiffs from seeking the same damages from him. It makes no difference, the defendant...
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