Sayre v. Sheffield Land, Iron & Coal Co.

• Decision Date: 23 May 1895
• Citation: 18 So. 101,106 Ala. 440
• Court: Alabama Supreme Court
• Parties: SAYRE v. SHEFFIELD LAND, IRON & COAL CO.

18 So. 101

106 Ala. 440

SAYRE v. SHEFFIELD LAND, IRON & COAL CO.

Supreme Court of Alabama

May 23, 1895

Appeal from circuit court, Colbert county; H. C. Speake, Judge.

Action by Herbert A. Sayre against the Sheffield Land, Iron & Coal Company for damages for breach of covenant. Judgment was rendered in favor of plaintiff, and from an order granting a new trial he appeals. Affirmed.

This action was brought by the appellant, Herbert A. Sayre against the appellee, the Sheffield Land, Iron & Coal Company, to recover damages for the alleged breach of covenants of warranty and seisin contained in a deed from the defendant conveying certain land to the plaintiff; and was instituted January 16, 1894. Issue was joined on the fourth and fifth pleas of the defendant, which were as follows "*** Comes the defendant, by its attorneys, and for answer to the complaint in this case says: (4) That it made a warranty deed to the land in question to the plaintiff on which he entered into possession, has never been disturbed and from which he has never been evicted, and to which no paramount claim has ever been advanced; and that before the bringing of this action, plaintiff had a full, complete and perfect title in fee simple to the lot conveyed. (5) Defendant avers that, at the time said land was conveyed to plaintiff, and continuously from that time to the present said lot of land was unoccupied; that plaintiff entered into and claimed possession thereof, acting as owner, paying taxes thereon, and claiming said land, and that such possession and ownership has never been questioned by any person claiming a paramount title in any manner whatsoever; and that before the bringing of this action, plaintiff had a perfect title in fee simple to the land described in the complaint." On the trial of the cause, as is shown by the bill of exceptions, it was shown that on October 16, 1891, the defendant executed a deed to the plaintiff conveying a certain lot in the city of Sheffield, which deed was duly acknowledged and recorded in the probate office of Colbert county. This deed, after stating in its granting clause that the defendant grantor "hereby grants, bargains, sells, enfeoffs and confirms unto the grantee," the plaintiff, the lot involved in this suit, contains the following covenants: "And said grantor covenants with the said grantee, his heirs and assigns, that said grantor is lawfully seised in fee of the aforegranted premises, that they are free from all incumbrances, that said grantor has a good right to sell and convey the same to the said grantee, his heirs and assigns and that said grantor will warrant and defend the premises to the said grantee, his heirs and assigns, forever, against the lawful claims and demands of all persons." Prior to the execution of this deed to the plaintiff, to wit, on September 19, 1891, the defendant, for a recited valuable consideration, executed a deed to one Hugh J. West, conveying the same lot it afterwards conveyed to plaintiff. This deed to West was duly acknowledged and recorded in the probate office on October 1, 1891, and contained the same covenants as the deed to plaintiff. On September 15, 1893, the said Hugh J. West, for a recited valuable consideration, executed a deed, properly acknowledged, to the defendant, by which he reconveyed the same lot of land to the defendant; this deed containing the same covenants as did the other deed, and being recorded in the probate court of Colbert county on October 12, 1893. One Ashe, a witness for the defendant testified that, at the time of the purchase of said lot by the plaintiff, he was a real-estate agent in the city of Sheffield, and was employed by the plaintiff, as such, and purchased for plaintiff the lot described in the complaint, and obtained the deed thereto to the plaintiff from defendant, in consideration of 2 1/2 shares of Sheffield stock, taken at their par value, their market value being only 50 cents on the dollar; that after the purchase, he had said lot, along with several others belonging to plaintiff, in his charge for sale, and that as such agent for plaintiff, he paid the taxes on said lot for the years 1892 and 1893; that in the spring of 1893, on being informed that said lot had been sold to Hugh J. West prior to its sale to plaintiff, he inquired of said West in this was true, and was told by him that it was, and that he, West, had a conveyance to said lot, and claimed it. This witness further testified that, at the time of plaintiff's purchase, the lot was vacant, uninclosed and not in the actual occupancy of any one; that neither West, plaintiff, nor witness had ever had any actual visible possession of said lot. It was further shown by the evidence introduced that in March, 1893, the defendant, having ascertained the mistake made by it in conveying said lot to West and then to plaintiff, wrote to plaintiff, informing him fo the mistake, and offering to convey to him, in lieu of the one sold, another lot, which, it was claimed, was of equal, if not greater, value. The plaintiff testified that the receipt of this letter was the first information he had that his title to said lot was defective; that he had never consented with defendant to surrender his right of action for the breach of the covenants in its deed to him; and that after hearing that he had no title to the said lot, he tried to avoid paying taxes on it for the year 1893, but could not do it. The case was tried by the court, without the intervention of a jury, and upon hearing all the evidence, the court rendered judgment for the plaintiff, assessing his damages at $148. Upon the rendition of this judgment, the defendant moved to set it aside on the ground, that it was contrary to...