Lowrance v. Robertson
| Decision Date | 13 February 1878 |
| Citation | 10 S.C. 8 |
| Parties | LOWRANCE v. ROBERTSON. |
| Court | South Carolina Supreme Court |
In an action to recover damages for the breach of a covenant of warranty in a sale of lands, brought by a purchaser from the covenantee, the measure of damages is the consideration money paid by the covenantee, with interest thereon from the time of the sale and the costs of the action to eject the plaintiff, and not the price paid by the plaintiff for the land.
In an action by a purchaser of land from the covenantee against the covenantor to recover damages for a breach of the covenant voluntary payments made by the covenantor to the covenantee and to the owners of the land for the use thereof held to be no defense to the action.
BEFORE KERSHAW, J., AT RICHLAND, AUGUST, 1877.
This was an action by Rufus N. Lowrance, William B. Lowrance and Joseph R. Black against Thomas J. Robertson, executor of John Caldwell, deceased.
The case will be fully understood from the report of the Referee the exceptions thereto and the judgment of the Circuit Judge.
The report of the Referee is as follows:
The complaint alleges:
1. That on March 24, 1851, John Caldwell, in consideration of five thousand dollars paid to him by Samuel Pearse, conveyed by deed to said Samuel Pearse, in fee simple, the premises described in the complaint, and that the said John Caldwell then and there, by the said deed, covenanted for himself, his heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Samuel Pearse, his heirs and assigns, against all persons whomsoever lawfully claiming or to claim the same or any part thereof.
2. That on August 27, 1869, Daniel B. Miller, Clerk of the Court of Common Pleas for the County aforesaid, by virtue of certain proceedings in the Court of Equity and Court of Common Pleas, upon a bill filed by Susannah M. Pearse, on or about the day of , 1867, at Columbia, in said County and State, against Andrew W. Lewis, Elizabeth Lewis and others praying among other things the sale of said premises as the property of said Samuel Pearse, did convey by deed to the plaintiffs in fee simple, for the sum of four thousand dollars, the premises aforesaid, and also the estate, right, title, interest, dower, possession, property, benefit, claim and demands whatsoever of the devisees, and of the heirs-at-law of said Samuel Pearse, who had died in possession of said premises, after having devised them, and of all the parties to said proceedings, and all other persons rightfully claiming or to claim the same or any part thereof, by, from or under them, or any of them.
3. That Olivia R. McGowan, Henrietta McGowan, Agnes Hydrick, her husband, Jacob Hydrick, William B. McGowan, Sallie F. Drennan, her husband, John Drennan, and Mary McGowan, the lawful owners of said premises, on May 12, 1873, entered into the said premises and ejected and removed the plaintiffs by action in the Court of Common Pleas, at Columbia, in said County and State, and due process of law, from the occupation and possession of the same, and have ever since kept them out of the same.
4. That by reason thereof the plaintiffs have not only lost the said premises, but have been obliged to pay, to wit, on July 3, 1873, the sum of five hundred and sixty-seven dollars and ninety-four cents, taxed costs in the action aforesaid, prosecuted against them for the recovery of said premises.
5. That before the commencement of said action, John Caldwell died, leaving Oscar A. Caldwell and Thomas J. Robertson executors of his will, both of whom duly qualified thereon, and that said Oscar A. Caldwell died, leaving said Thomas J. Robertson sole surviving executor.
6. That plaintiffs gave due notice to said surviving executor of the pendency of said action, and to come in and support their title and defend said action.
7. And the plaintiffs demand judgment against Thomas J. Robertson as such surviving executor, for five thousand dollars, with interest from March 24, 1851, and for five hundred and sixty-seven dollars and ninety-four cents, with interest from July 3, 1873, and for costs and disbursements.
The answer:
1. Denies knowledge of the truth of the 1st, 2d, 3d and 4th paragraphs of the complaint.
2. Admits the truth of the 5th paragraph.
3. Denies the truth of the statements contained in the 6th paragraph of the complaint.
At the hearing the defendant admitted the truth of each and every allegation of the complaint.
The defendant introduced the following evidence:
1. The paper herewith filed and marked " A," which was a receipt bearing date March 2, 1876, signed by McMaster & LeConte, attorneys for Olivia McGowan and others, the children of Sarah P. McGowan, deceased, to Thomas Robertson, executor of John Caldwell, deceased, for " one thousand dollars in full of all claims for mesne profits, rents and damages of every kind against the said John Caldwell, deceased, and all others claiming title immediately and subsequently, directly and indirectly, as his grantees, and as grantees in succession of his grantees" of the premises in question, to which receipt I desire that reference shall be had.
2. The bond and mortgage of the plaintiffs to D. B. Miller, Clerk of the Court. The bond bears date August 27, 1869, penalty $8,000; condition, $4,000 payable five years from the ninth day of January, 1869, with interest on the whole, payable semi-annually from said ninth day of January, 1869.
Upon this bond are the following endorsements:
[It was here shown that the principal, at the last date, was reduced to $3,840.]
The foregoing payments were made by the plaintiffs. There then follows the following endorsement on the bond:
The whole of this evidence was objected to by the plaintiffs on the grounds-
1. That it could not be introduced under the pleadings; and
2. That it was irrelevant, and therefore inadmissible. It was, however, admitted that the papers were genuine, and that the bond and mortgage constituted the consideration for the purchase of the land by the plaintiffs from Miller. The evidence was introduced by way of puis darrein continuance, having been discovered and performed since the commencement of the action, but without any formal plea. I overruled the objection and admitted the evidence. The proceeding under which the payment of fifteen hundred dollars in satisfaction of the bond is purported to have been made was not in evidence before me. It was agreed at the hearing that the complaint should be regarded as amended so as to change the payment by the plaintiffs of thirty-two dollars and fifty cents costs, paid July 3, 1873. I have stated the pleadings and evidence with great particularity in order that any errors may be the more readily corrected by the appellate tribunal.
The issues of law presented are-
2. To what extent have these damages been discharged by the defendant? And, as subsidiary to the latter,-First, whether the payments were not voluntary payments of the debt of another, and such as could not be recovered against the plaintiffs? Secondly, whether under the circumstances the defendant can set off the mesne profits paid against the interest to be paid by him. Third, whether in case the payments are admitted the defendant should not be restricted to the fifteen hundred dollars actually paid by him in satisfaction of the bond, and to the pro rata part of the mesne profits in proportion to the period of their occupation of the land?
The first question is, I think, settled by the rule of the common law, declared by the Act of Assembly of this State. This rule I take to be " the measure of value is that of the land at the time of the warranty made," with interest from that date.-Rawls on Con. for Titles, p. 233, and note 3 for authorities; Rev. Stats., 562, § 18; Earle vs. Middleton , Chev., 130.
The difficulty presented in this case is that the action is not brought against the immediate alienor to the plaintiffs, but against an antecedent covenanter, the benefit of whose covenant is vested in the plaintiffs. The plaintiffs' alienor made no covenants, but transferred to them with the land the covenants which they received with it, so that the plaintiffs acquire all the benefits of the covenants of Caldwell to Pearse. Any other doctrine, it appears to me would lead to most inequitable, if not absurd, conclusions. If the plaintiffs in their action against Caldwell are limited to the price paid by...
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