Robertson v. Lemon
| Decision Date | 04 October 1867 |
| Citation | 65 Ky. 301 |
| Parties | Robertson v. Lemon and wife. |
| Court | Kentucky Court of Appeals |
In actions for breach of warranty of title to land, restitution to the extent of the failure of consideration is the fixed and only stable or consistent rule. The true criterion is not the value of the land at the time of eviction but the amount received for the lost land, and all legal costs incurred in resisting the eviction.
APPEAL FROM HARRISON CIRCUIT COURT.
W. W TRIMBLE, For Appellant,
CITED--
13 Johnson, 50; Burnett vs. Jenkins.
3 Cain's Cases, 199; Stoats vs. Ten Eyck.
6 Wheaton, 118; Hopkins vs. Lee.
2 Parsons on Contracts, pp. 500, 502.
5 Johnson, 49; Morris vs. Phillips.
1 Parsons on Contracts, 187, title Eviction.
BECK & BOYD, For Appellee,
CITED--
2 Bibb, 278; Cox's heirs vs. Strode.
3 Cains, 111.
3 Monroe, 348.
On the 12th of March, 1842, the appellant, James Robertson, sold and by deed of general warranty conveyed to Moses Thomas, for sixty-five dollars an acre, a tract of land described as containing one hundred and eight acres.
On the 18th of October, 1849, Thomas having died, his executors, under a power given to them by his will, sold and conveyed to James C. Lemon his homestead tract of land of three hundred and fifty-nine acres, including the one hundred and eight acres previously conveyed to Thomas by Robertson. The price of this larger tract of three hundred and fifty-nine acres was sixty-one dollars an acre; and Thomas having withheld from Robertson about four thousand dollars due on the conveyance of the one hundred and eight acres, because he doubted the title to seventy acres thereof, the conveyance by his executors contained only a special warranty of the title thereto; out of the price agreed to be paid to Thomas' executors Lemon paid to Robertson the residual debt for the one hundred and eight acres, and excepted from the general warranty the said seventy acres, in consideration of a covenant by Robertson and by John Lail, as his surety, to indemnify him " against all loss, cost, and damage growing out of or on account of any defect in the title; " and to assure the promised indemnity, Lail executed to Lemon a mortgage on another tract of land claimed as his own.
On the 1st of March, 1861, Lemon, for the consideration of eighty-five dollars an acre, sold and conveyed to J. G. Garth, by deed of general warranty, the tract of three hundred and fifty-nine acres, including the said seventy acres. And afterwards a judgment of eviction on a paramount title was rendered against Lemon and Garth for fifty-four acres of the said seventy acres, or rather for one half of the one hundred and eight acres described in the judgment as one hundred and five acres. And costs and rent were also adjudged.
This suit was brought to enforce the covenant of indemity by a sale of the mortgaged land or otherwise; and, on the hearing, the circuit court continuing the case as to the mortgage, rendered a judgment against Robertson for eighty-five dollars an acre for fifty-four acres as lost by the judgment of eviction, and for the assessed rents and for costs, including three hundred dollars for counsel's fees in resisting the judgment of eviction.
From that judgment he appeals.
The appellant is certainly liable for the legal costs incurred in resisting the eviction, and also for a reasonable fee paid to counsel for defending the action. There is nothing in the record to show whether the adjudged amount of three hundred dollars was reasonable or not; further preparation might certify this matter more satisfactorily. But assuming, as we must do, that the use of the lost land was equivalent to the assessed rent, the appellant is not justly liable for rents adjudged against the occupants, who, by the use, have already been fully paid the amount so adjudged for the use. So far as rents paid by Lemon and Garth were adjudged against the appellant, the judgment is therefore erroneous.
But as Lemon had to pay for the use of the land for five years, Robertson ought, during the same time, to pay legal interest on the consideration, the use of which he had enjoyed. This will be less than the rents assessed against Lemon and Garth.
The judgment is even more essentially erroneous in holding the appellant responsible for eighty-five dollars, instead of sixty-five dollars an acre, for the land lost.
Had the amount for which Lemon sold to Garth been the true criterion for measuring the appellant's liability, even then the record would not, in this respect, sustain the judgment because, although it appears...
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