Sutton v. Cannon

• Citation: 100 So. 24,135 Miss. 368
• Decision Date: 12 May 1924
• Docket Number: 23853
• Court: United States State Supreme Court of Mississippi
• Parties: SUTTON et al. v. CANNON. [*]

100 So. 24

135 Miss. 368

SUTTON et al. v. CANNON. ^[*]

No. 23853

Supreme Court of Mississippi

May 12, 1924

Division B

1 COVENANTS. Grantor liable for breach of warranty, though grantee had notice of incumbrance.

Under Code 1906, section 2817 (Hemingway's Code, section 2318) a grantor who executes a general warranty deed is liable for breach of warranty by reason of incumbrances, though grantee had notice thereof at time of purchase of property.

2 CONVENANTS. Grantee's surrender of possession held not to preclude recovery of damages for breach of warranty of title.

Where land for which grantee had contracted to pay ten thousand dollars was advertised for sale with other lands under a deed of trust securing notes for twenty-seven thousand dollars, and grantee made unsuccessful effort to induce grantors to discharge incumbrance or protect his title from the sale, his surrender of possession did not preclude him from recovering from grantors for breach of warranty of title.

3. CONVENANTS. Deed of trust and trustee's deed thereunder held to make prima-facie showing of valid and paramount incumbrance and title.

In grantee's action for breach of warranty of title, deed of trust securing purchase-money notes, and trustee's deed thereunder, regular and valid on their face, held to make prima-facie showing of a valid and paramount incumbrance and title.

4. CONVENANTS. Refusal to accept offer requiring payment of more than original purchase price did not preclude action for breach of warranty.

Grantee's refusal to accept remote grantor's offer to convey requiring payment by grantee of mare than original purchase money without credit for amounts to which he was entitled did not preclude grantee from suing grantors for breach of warranty of title by reason of incumbrances.

5. CONVENANTS. Measure of damages for breach of warranty is amount paid, with interest.

The measure of damages for breach of warranty of title is the amount of the purchase price paid with interest.

6. CONVENANTS. Grantee suing remote grantor could not recover value of real estate conveyed to immediate grantor.

A grantee who conveyed other property to grantor and assumed, grantor's notes to remote grantor was entitled, in action against remote grantor for breach of warranty of title, to amount paid on notes and to cancellation of unpaid notes, but not to value of real estate conveyed to immediate grantor.

HON. E. N. THOMAS, Chancellor.

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS, Chancellor.

Suit by O. H. Cannon against J. L. Sutton and others. Decree for complainant and defendants appeal. Reversed in part, and affirmed in part.

Decree reversed in part, and affirmed in part.

Everett & Forman and Quinn & Cooper, for appellant.

We contend that Cannon, cannot maintain this action against the appellant, Sutton, for a number of reasons.

(a) There is no warranty of title in the deed from Sutton to Smith, therefore, Cannon cannot recover of Sutton. The deed from B. F. Dulwebber to the appellant, Sutton, is a warranty deed with conditions subsequent which must be performed before any title can be passed by Sutton. A vendor's lien is retained on the property in the deed, and a provision is made in the deed that a trust deed shall be given on the property to secure the notes mentioned in the deed. All of these facts were well known to Cannon at the time he purchased from Smith. Myers v. Buchanon, 46 Miss. 397; Myers v. Vinerett, 70 So. 451.

"Oral testimony establishing actual knowledge of the complainant of the existence of a prior deed or mortgage on the property at the time he purchased is admissible and competent." Wasson v. Conner, 54 Miss. 351; Duke v. Clarke, 58 Miss. 465; Wood v. Garnett, 72 Miss. 78. "One who purchases land knowing the title to be defective buys at his own risk." Walker v. Quigg, 31 Am. St. Rep. 452; Roach v. Kindt, 39 Am. Dec. 54.

II. Then again we say there was no warranty of title, because the deed from Sutton to Smith did not warrant the title as against the vendor's lien and trust deed of Dulwebber, for that deed specifically, refers to the deed from Dulwebber to Sutton.

III. Next we contend that the appellee voluntarily surrendered the property before his note became due; therefore, he cannot make claim now against either Smith or Sutton.

In Crisler v. Whadley, 102 Miss. 761, the court says: "Where property is abandoned or surrendered by a mortgagor so that its value might be applied to the indebtedness secured by a trust deed on the property, the mortgagor is thereby estopped from setting up a claim thereafter against the mortgagee. "If this be sound law, then surely after Cannon abandoned the property of his own free will and accord, he cannot now sue his grantors for a breach of their contract, because he did not fulfill his. See also Lightly v. Shorb, 24 Am. Dec. 334; Burroughs v. Wilkerson, 31 Miss. 544.

H. C. Mounger, for appellee.

I. Jurisdiction. The chancery court did have jurisdiction. Dwyer v. Britton, 53 Miss. 270, at 278, holds: "But in addition to this legal remedy the covenantee and vendee may bring his plaint in the court of chancery."

Dulwebber had a deed of trust on Cannon's land, given by Sutton, for thirty thousand dollars. Sutton by his deed warranted Cannon against this. Sutton did not relieve the land of this incumbrance. Dulwebber foreclosed his deed of trust and Cannon lost his land. He lost the title and the seizin of the land. The land was actually sold out under the deed of trust. Sutton made no attempt to protect Cannon. A valid subsisting lien on the land conveyed is a breach of the covenant against encumbrances, etc. 15 C. J. 1272.

The Congregation of Sisters of Perpetual Adoration v. Jans, 110 Miss. 612, held that taxes were a lien which was embraced in a warranty, and the existence of such a lien was a breach of a general covenant of warranty. "A sale under a prior mortgage is a breach of covenant." Dwyer v. Britton, 53 Miss. 270, 277; 8 Ency. Pl. and Pr., page 3, 249; 8 Am. and Eng. Ency. Law, p, 128.

It was not necessary for Cannon to wait until he had been removed by the sheriff. He gave up after the land had been advertised, and Sutton refused to do anything. Both Cannon and Sutton were evicted. Cannon was practically and in effect evicted. An eviction was not necessary in order to enable Cannon to sue on his warranty. Dwyer v. Britton, 53 Miss. 273, 277; See, also, 59 Miss. 323; 50 Miss. 521; 57 Miss. 277; 59 Miss. 323.

Cannon then had a right to sue both Sutton and the Smiths for breach of the warranty. To the same effect is 8 Am. and Eng. Ency. Law, 158.

Argued orally by F. E. Everett, for appellant, and H. C. Mounger, for appellee.

OPINION

COOK, J.

The appellee, O. H. Cannon, filed a bill in the chancery court of Sunflower county against J. L. Sutton, and B. T. Smith and wife, appellants, whereby he sought to recover damages for a breach of warranty in certain deeds conveying to him a tract of land, with the timber reserved, and also for an accounting for the sum alleged to be due him by Sutton under a certain logging contract involving the reserved timber on said tract of land, and from a decree in favor of Cannon this appeal was prosecuted by the several defendants.

The facts as developed in this record are substantially as follows: On July 7, 1919, B. F. Dulwebber, the owner of the Kraetzer-Cured Lumber Company, conveyed to J. L. Sutton certain land located in Sunflower county, Miss., reserving from the conveyance all the timber standing on the land. The consideration named in the deed was two thousand dollars cash, and a series of six promissory notes, aggregating thirty thousand dollars, secured by a vendor's lien reserved in the deed and by a deed of trust on the land so conveyed, and the further consideration of the covenants and agreements to be kept and performed by the grantee in a certain timber contract of the same date between the Kraetzer-Cured Lumber Company and the grantee for the removal of all the timber standing or located on the lands so conveyed.

On the same day that Sutton purchased this land, he entered into a contract with the Kraetzer-Cured Lumber Company to cut and log the timber standing on the land purchased by him and deliver the same on the Southern Railway in Mississippi, the contract providing in detail the method of logging the same and the time and place of deliveries, and providing, as afterwards modified, for the payment to Sutton of thirteen dollars per thousand feet for cutting and hauling the timber, with a hold-back of two dollars per thousand feet to be applied toward the discharge of the notes due by Sutton to Dulwebber; the hold-back to be applied first to the note last maturing, and then to the note maturing next to the last, the payments to be applied in this order until the entire indebtedness should be discharged.

On July 12, 1919, by warranty deed, J. L. Sutton conveyed to B. T. Smith a part of the land which he had purchased from Dulwebber, for a consideration of eight thousand three hundred dollars, evidenced by five promissory notes, one maturing on January 1st of each year thereafter until all were paid, and secured by a deed of trust on the land so conveyed; the deed to Smith expressly reserving the timber growing on the land, and providing that all the grantor's rights under the Dulwebber deed and the timber contract with the Kraetzer-Cured Lumber Company were excepted from the warranty.

On October 27, 1919, by warranty deed, B. T. Smith and wife conveyed to the appellee, O. H. Cannon, the land which they had purchased from Sutton, in consideration of the conveyance by Cannon to...