Simpson v. Hawkins
| Decision Date | 10 May 1833 |
| Citation | 31 Ky. 303 |
| Parties | Simpson and Others v. Hawkins and Cochran. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR GALLATIN COUNTY.
Mr Monroe and Mr. Triplett for Plaintiffs.
Mr Crittenden and Mr. Haggin for Defendants.
This cause was first argued at the Fall Term, 1831, while the Court was composed of Chief Justice Robertson, Judges Underwood and Buckner. Soon after the close of the term, and while the cause was under advisement, Judge Buckner resigned and was succeeded by Judge Nicholas; who, as he was not upon the bench at the time of the argument, had taken no part in the decision, when the following Opinion was delivered, by Judge Underwood--April 11th, 1832. The cause was afterwards reargued before the present Judges, and their Opinions delivered seriatim, as will be seen in the sequel.
In August, 1818, the Simpsons executed a deed purporting to convey to Hawkins and Cochran, five hundred and thirty acres of land; two hundred and fifty of which they held according to the deed, under the claim of Howard, and the remaining two hundred and eighty acres under a deed executed by William Steele, as attorney in fact for John Adams, to them. The deed from the Simpsons to Hawkins and Cochran, contains a clause of general warranty.
A statement of the facts of the case, and of the proceedings and decree in the court below.
Hawkins and Cochran purchased the land at fifteen dollars per acre paid a large sum in hand, and gave their notes for the balance. Judgments were obtained on some of these notes; to restrain the collection of which Hawkins, & c., filed their bill. An injunction was awarded. The equity relied on consists in an alleged defect of title, and an inability on the part of the plaintiffs in error to remunerate the defendants, in case the land should be taken from them after the payment of the money.
The court rescinded the contract, and decreed that the Simpsons should repay the purchase money received by them, with interest, and likewise pay for the lasting and valuable improvements made upon the premises since the sale, subject to deductions for rent and waste. The writ of error is prosecuted to reverse this error.
Commissioners were appointed to settle the accounts. They reported a large balance against the Simpsons. The report was confirmed by the court; and a final decree entered, authorizing the defendants to hold possession of the lands until the money was paid, and providing for a sale of the land, if the money was not paid by a given day, and appointing a commissioner to carry the decree into effect by making the sale upon the non-payment of the money. The commissioner was left to decide whether the money was paid on the day or not, He made sale of the land at public auction, on the 8th of December, 1828; having first caused the land to be valued, as though the sale has been conducted under a fieri facias. Rigg purchased it, at the price of one hundred dollars. The commissioner reported his proceedings to court; they were confirmed; and after crediting the hundred dollars made by the sale, a balance was found against the plaintiffs in error, amounting to three thousand four hundred and twenty-nine dollars, forty-seven and a half cents; which the court directed them to pay, with interest at the rate of six per centum per annum, from the 11th of August, 1818, together with all costs; and authorized execution to issue therefor. After this, an execution was taken out, upon the decree, and levied on the equity of redemption, which the plaintiffs in error claimed in the land. Their equity of redemption was sold for one hundred dollars and purchased by Rigg.
It seems from the evidence in the cause, that the Simpsons, or one of them, settled on that part of the land covered by the claim of Howard, as far back as February, 1796. So that there was more than twenty years continued possession, from the date of that settlement up to the time possession was delivered to Hawkins and Cochran. The possession of the Simpsons during that period, within the limits of Howard's claim, was adverse to the claim of Adams, of twenty thousand acres. It does not appear, that a writ of right would avail any thing in favor of the representatives of Adams. An action of ejectment could not dispossess the Simpsons, or their vendees, to the extent of the two hundred and fifty acres held by them under Howard's claim.
Regarding the protection which time had thrown around the Simpsons perceiving no actual fraud on their part in the contract with Hawkins and Cochran, and seeing that the contract has been fully executed by a formal conveyance, with warranty of title against all the world, which warranty has not been broken by an eviction from the premises, and for aught that appears to us, never will be, we can not concur with the circuit court in a total rescission of the contract.
Indeed, where contracts are executed by conveyances, we are of opinion that there can be no rescission of a contract in any case, unless it has been tainted by actual fraud. If the warranty of title has been broken, so as to entitle the vendee to damages, or if the vendee be entitled to damages upon a covenant of seizin, he may apply to the chancellor, where the vendor is insolvent, to set-off those damages against the unpaid portion of the purchase money. The ground upon which the chancellor interferes in such cases, is the prevention of the irreparable mischief which otherwise might result from the insolvency. He ought not to act upon the principle of rescinding the contract. On the contrary, he should affirm the contract, and secure to the party such damages as he might be entitled to, for a partial or total violation thereof by the obligor. If a deed of conveyance be executed, for any quantity of land, and the vendee is put into possession thereafter, in case he loses half or three-fourths of the land, the law only authorizes a recovery, upon the warranty, of damages commensurate with the loss. The chancellor must follow the law, and not lay hold of such a partial loss, and require the vendor to take back the portion of the land saved, and return the purchase money for that, under the idea of rescinding contracts.
A contract for the sale of land, unaffected by fraud, can not be rescinded, in chancery, after it had been carried into effect by a conveyance. (See the dissent of Judge Nicholas, post.)
If the grantee is entitled to damages for a breach of warranty, or of a covenant of seizin, and the grantor, insolvent, the grantee may obtain an injunction to restrain the collection of any unpaid portion of the purchase money, and finally have it set off against the damages. See further on this point, at p. 309, and the concurrent opinion of Judge Nicholas, post.
The fact, that Howard's claims were not carried into grant at the date of the deed from the Simpsons to Hawkins and Cochran, can not operate against the foregoing view of the subject. It is enough that the Simpsons or one of them, entered upon the land claiming the same adversely to Adams, whose title, now, is the cause of alarm to the defendants in error.
If the grantee in possession loses part of the land, he may recover, on the warranty, damages commensurate with the loss; but it is not cause for rescinding the whole contract.
It is not necessary that the possessor of land should claim under a patent in order to avail himself of the limitation founded on twenty years continued, adverse possession. The surveys of Howard were made as early as 1792. This fact, connected with other circumstances, justifies the inference, that the Simpsons entered upon and claimed a particular quantity, susceptible of identification by a marked boundary. It does not appear, but that Howard's claims may yet be carried into grant. They may be saved from forfeiture by the disabilities provided for in the statute. But, however, these things may be, it is certain that the covenant of warranty made by the Simpsons, has not been broken; and for any thing appearing to us, it is not probable that it ever will be so far as it relates to the two hundred and fifty acres claimed under Howard by the Simpsons; to that extent, therefore, the decree can not be sustained.
Twenty years' adverse possession may be relied on, without a grant or conveyance.
A covenant of warranty is not broken until an eviction has taken place.
In relation to the two hundred and eighty acres conveyed to Hawkins and Cochran, we have experienced more difficulty. This parcel the Simpsons claimed under a deed executed in the name of John Adams, administrator, with the will annexed, of Richard Adams, by William Steele, his attorney in fact. We are of opinion that this deed confers to title upon the Simpsons. Conceding that the administrator with the will annexed, may do all which the executor refusing to qualify might have performed upon his qualifying, under the authority conferred by the act of 1810, (4 Littell's Laws, 204,) as was determined by this court in the case of Jackson v Jeffries, 1 Marshall, 88, still we apprehend that the person appointed administrator, with the will annexed, in another state where the testator died and where his will may have been first recorded, can not exercise the power and fulfill the duties contemplated by the act of 1810, in relation to real estate situated in Kentucky, unless he shall be appointed by the proper court in this state. Indeed, we look upon the case of Jackson v. Jeffries, as settling the point, In that case, as may be seen by the petition for a rehearing, it was contended that the appointment of an administrator, with the will annexed, in Virginia, conferred on the administrator so appointed the power to sell and convey, under the act of 1810, if the true construction of that...
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