Prestwood v. McGowin

• Decision Date: 20 December 1900
• Citation: 29 So. 386,128 Ala. 267
• Parties: PRESTWOOD ET AL. v. MCGOWIN ET AL.
• Court: Alabama Supreme Court

29 So. 386

128 Ala. 267

PRESTWOOD ET AL. v. MCGOWIN ET AL.

Supreme Court of Alabama

December 20, 1900

Appeal from circuit court, Covington county; A. H. Alson, Judge.

Action by S.W. McGowin and others against J. A. Prestwood and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

The plaintiffs as described in the complaint were: "S. W McGowin, E. B. White, Aggie Dixon, Bell White, J. M. McGowin and S.W. McGowin, adult heirs at law of James McGowin deceased, and Fred and Maggie McGowin, minor heirs of F. T McGowin, who was heir at law of James McGowin, deceased, who sued by and through their next friend, E. B. White." The plaintiffs claimed damages for a breach of covenant of warranty contained in a deed executed by the defendants on August 17, 1896.

The claim as contained in the complaint and the averments therein of the breach complained of are sufficiently set forth in the opinion. In addition thereto the plaintiffs claimed $105 as costs which they incurred in the actions of ejectment, which they brought against the parties who were in adverse possession of the land.

The defendants moved to strike the complaint from the file upon the ground that it contained no cause of action. This motion was overruled and defendants duly excepted. Thereupon the defendants demurred upon the complaint on the grounds set forth, and by its averment showed that the contract sued on is void. The second and third grounds of demurrer are copied in the opinion. The fourth ground was as follows "Defendants demur to that part of the complaint which avers that plaintiffs have brought actions of ejectment to recover the lands described in the complaint and have incurred costs to the amount of $105, in said suits and for grounds of demurrer assign the following: (1) There is no averment in the complaint that the defendants authorized or directed the bringing of said ejectment suits. (2) The damages claimed having been incurred by reason of said ejectment suits are shown to be consequential and not the direct result of any of the breaches of covenants of warranty of seisin contained in the deed declared on." This demurrer was overruled and defendants duly excepted.

M. E. Prestwood and M. A. Knowles pleaded covertures which pleas were confessed by the plaintiffs. Thereupon complainants, M. E. Prestwood and M. A. Knowles, pleaded general issue upon which issue was joined.

On the trial of the case E. B. White, witness for the plaintiff, testified as to the relationship of the plaintiffs to James McGowin, deceased; stating that they were heirs as alleged in the complaint. The plaintiffs offered in evidence as the foundation of their cause of action a deed from J. E. Prestwood, M. E. Prestwood, William T. Knowles and M. E. Knowles to James McGowin, F. T. McGowin, S.W. McGowin and E. B. White, by which deed the grantors therein sought to convey to the grantees named certain lands specifically described. The warranty clause of this deed is copied in the opinion.

The defendants objected to the introduction of this deed in evidence upon the following grounds: (1) "Said deed does not support allegations of the complaint." (2) "Said deed showed that Aggie Dixon, Bell White, John C. McGowin and F. and Maggie McGowin, a portion of the plaintiffs in this case, are not grantees or parties to the deed."

The court overruled this objection and allowed deed to be introduced in evidence and to this ruling defendants duly excepted.

There was evidence on the part of the plaintiffs tending to show that at the time of the execution of this deed to the grantees, named therein, separate portions of the land sought to be conveyed and described in said deed were owned and held in adverse possession by other parties than the grantors as alleged in the complaint.

Upon the court's examination of the witness E. B. White, after he had testified that he knew the value of the lands in controversy as well as the adjoining lands, he was asked the following question: "What was the difference in value at the date of the deed from defendants to you of the Thomason land (you have testified about) and your own land, adjoining it?" Plaintiff objected to this question and the court duly excepted.

The other facts necessary for the understanding of the present appeal are sufficiently stated in the opinion.

Among the other charges requested by the defendants, to the refusal to give which the defendants and each of them separately excepted, was the following: "If you believe the evidence, your verdict should be for the defendants."

There were verdict and judgment for the plaintiffs. The defendants appeal and assign as error the several rulings of the trial court to which exceptions were reserved.

Powell & Albritton, for appellants.

B. H. Lewis and Stallworth & Burnett, for appellees.

HARALSON J.

This action seeks damages for the breach of covenants of seisin and warranty of title to land. An eviction or ouster, either actual or constructive, is essential to the breach. The eviction need not be with force. If it appears that the covenantee has yielded to a paramount title, whether it was derived from his own grantor or from a stranger, and he gives up the possession, if he ever had it; or he becomes the tenant of him of superior title, or has purchased his title, that is sufficient as being a constructive ouster. So, again, if the covenantee has been denied or held out of possession, by one in actual possession under paramount title, at the time of the conveyance, this would be a breach of the covenant. Griffin v. Reynolds, 17 Ala. 198; Gunter v. Williams, 40 Ala. 561; Copeland v. McAdory, 100 Ala. 553, 559, 13 So. 545; Moore v. Vail, 17 Ill. 185; Witty v. Hightower, 12 Smedes & M. 478; 2 Greenl. Ev. 244; Tied. Real Prop. §§ 855; 860; Rawle, Cov. § 139.

"The covenant for quiet enjoyment and of warranty [of title] are practically identical in operation; and whatever constitutes the breach of the one covenant, is a breach of the other. Either extends to all lawful, outstanding adverse claims upon the premises conveyed." Copeland v. McAdory, 100 Ala. 559, 13 So. 545; Tied. Real Prop. § 855.

2. In declaring a breach on a covenant of seisin, or of good right to convey, all that is necessary is, to negative the words of the covenant generally; but, as we have seen, this is not sufficient in declaring on the covenants for quiet enjoyment and of warranty of title. Copeland's Case, 100 Ala. 556, 13 So. 545. From the case cited, it will be seen, that the complaint, to be in proper form, should contain separate counts and assignments for each of the breaches for which a recovery is sought. The complaint here joins the covenant of seisin and warranty of title in one count as a basis for recovery. The demurrer as to the sufficiency of the complaint in averring a breach of the covenant of seisin and warranty, is, "(2) Said complaint avers that the covenants of warranty and seisin as to the lands therein described, were broken at the time of making the same, but fails to aver that the plaintiffs were ousted from the lands described in the complaint, by an outstanding title which was in existence at the time of making said covenant of warranty and seisin, and fails to aver that said title was paramount to the title obtained from these defendants," and "(3) Said complaint avers that the covenant of warranty to the lands therein described was broken, but fails to aver that plaintiffs were ousted from the lands described in said complaint by an outstanding title which was paramount to the title which was obtained by these defendants."

The averments of the complaint are, that the defendants, the grantors in the conveyance, covenanted with the grantees therein that they were lawfully seised in fee simple of said premises, that they were free from all incumbrances, and that they had a good right to sell the convey the same, and,-to employ the language of the deed,-"that we will, and our heirs, executors and administrators shall, warrant and defend the same to [the grantees, naming them] their heirs and assigns forever, against the lawful claims of all persons." The breach of covenant assigned is, "And the plaintiffs aver that said covenants of warranty and seisin have been broken in this, that at the time of making said covenant of warranty, said defendants had no title to [describing a part of the lands conveyed] and were not lawfully seised of said lands, but that one J. F. Anderson had the...