Patterson v. Cappon

• Decision Date: 05 April 1905
• Citation: 125 Wis. 198,102 N.W. 1083
• Parties: PATTERSON v. CAPPON ET UX.
• Court: Wisconsin Supreme Court

125 Wis. 198

102 N.W. 1083

PATTERSON

v.CAPPON ET UX.

Supreme Court of Wisconsin.

April 5, 1905.

Appeal from Superior Court, Milwaukee County; J. C. Ludwig, Judge.

Action by John G. Patterson against Jesse Cappon and wife. From an order sustaining a demurrer to the answer of Jesse Cappon, defendants appeal. Reversed in part.

Appeal from order sustaining demurrer to answer of the defendant Jesse Cappon. The complaint alleged that on February 14, 1894, the defendants, in consideration of $700, executed to one John Debus their full warranty deed of a certain lot in Milwaukee, of which deed a copy is set forth, and contains the usual covenant of seisin as of an absolute and indefeasible estate of inheritance in fee simple; also against incumbrances, except a mortgage of $400; “and that the above-bargained premises, in the quiet and peaceable possession of the party of the second part, his heirs and assigns, against all and every person lawfully claiming the whole and every part thereof, the said grantors will forever warrant and defend.” Further, that on March 12, 1895, said Debus, in consideration of $204, and the assumption of said $400 mortgage, then amounting to $414, conveyed the same premises to the plaintiff by full warranty deed; that at the time of the defendants' deed to Debus, the taxes for the year 1893, amounting to $2, were a lien upon the premises, and that the defendants have at all times neglected to pay said taxes; that by reason thereof the premises were sold in the following May, and in October, 1897, a tax deed duly issued to one Simon Heller, and was recorded, all without the knowledge of the plaintiff, until the year 1903, when said Heller's title had become perfect, the premises having been vacant, whereupon plaintiff notified defendants, and demanded protection against such title, in which they failed; that in October, 1903, said Heller conveyed his title to one Smith, who commenced suit against the plaintiff to quiet title; that defense to said suit was tendered both to the defendants and to Debus, which received no attention, whereupon, on October 30, 1903, judgment was rendered confirming and quieting the title of said Smith under said tax deed of said premises, whereby plaintiff became wholly ousted and out of possession of the premises. Damages were claimed in the sum of $618, the amount paid by plaintiff for the land, with interest from the date of his purchase. The answer admitted the execution of the deeds and the existence of the $400 mortgage and the unpaid tax thereon paid by Debus; also admitted the judgment quieting Smith's title, but denied disturbance of plaintiff's quiet possession. It also alleged that the purchase of the Heller tax title by Smith was in fact a purchase by the plaintiff, in the name of said Smith, and was accomplished for $150. As “further defense” it alleged that Debus agreed to pay the tax of 1893, and that defendants were not in duty or contract bound to pay it.Riley & Blatchley, for appellants.

C. T. Hickox, for respondent.

DODGE, J. (after stating the facts).

We need not resolve the somewhat vexed question whether the covenants of seisin and of freedom from incumbrance, under the law of Wisconsin, run with the land in the strict sense of that phrase, or being, as they necessarily are, breached by the existence of any incumbrance at the time of the conveyance, whether merely the chose in action thus arisingin favor of the original grantee is, by his deed, assigned to his successors in title, so that, instead of suing in their own right for the technical breach of those covenants, they sue merely in the right of the original covenantee as their assignor, and therefore subject to any defenses which would be effective as against him. This action is predicated not upon any technical breach arising from the mere existence of incumbrance at the time of the conveyance, whence nominal damages only could arise, but upon an alleged substantial and injurious breach, consisting in the eviction of this plaintiff after the property came to him, and whereby he himself suffered the damage. Mecklem v. Blake, 22 Wis. 495, 99 Am. Dec. 68;Johnson v. Brice, 102 Wis. 575, 78 N. W. 1086;Rice v. Ashland, 114 Wis. 140, 89 N. W. 908. Whether the above-mentioned covenants run with the land or not, strictly speaking, there is no doubt that the warranty to the original grantee, his heirs and assigns, of peaceable and undisturbed possession, does so. Schwallback v. Ry. Co., 69 Wis. 292, 298, 34 N. W. 128, 2 Am. St. Rep. 740; Tiedeman, Real Pr. § 862; 3 Washburn, Real Pr. § 2386. This warranty, according to the allegations of the complaint, is, of course, breached by an eviction which deprives the grantee of the possession so warranted, and gives to him right of substantial...