Tone v. Wilson

• Decision Date: 31 January 1876
• Citation: 1876 WL 10043,81 Ill. 529
• Parties: RICHARD TONEv.BERRY WILSON et al.
• Court: Illinois Supreme Court

81 Ill. 529

1876 WL 10043 (Ill.)

RICHARD TONE

v.BERRY WILSON et al.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. A. W. METCALF, and Messrs. DALE & BURNETT, for the appellant.

Messrs. GILLESPIE & HAPPY, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

On the 9th day of January, 1868, appellant purchased of appellee Wilson certain tracts of land, described in the bill. Wilson represented that he owned the title, and appellant relied on the representation, and purchased without any examination of the title. The price which he agreed to pay was $3000, $1000 of which he paid in money, and gave his three promissory notes, due at different dates, and a mortgage on the premises, to secure the balance. Wilson gave to appellant a deed of conveyance for the land, containing full covenants, and appellant went into possession, and has so continued.

Appellant paid the two notes first falling due, but not meeting the other at maturity, Wilson filed a bill to foreclose the mortgage, and, appellant making no defense, a decree was rendered for $617.40, and, in default of payment on a specified day, for a sale of the premises.

It appears that Wilson had title to but four-sevenths of a part of the premises, and three-sevenths to another part, when he sold the land, and it is claimed that, at the rate appellant paid for the land, the interest therein which was not conveyed to him would amount to $1445.85; that he did not discover the fact that he had failed to acquire these interests in the land until after he had paid the two notes first falling due, and when the bill was filed to foreclose for the last, he consulted with an attorney, who advised him that he could not make defense unless he could prove that Wilson was insolvent, which he could not then do.

Appellant, in his bill, charges that Wilson is insolvent. The bill prays that the conveyance be set aside; that Wilson be decreed to refund the money received, and that he be enjoined from selling the land under the decree of foreclosure, or that the contract be specifically performed, or that the decree be enjoined and the balance of the money received on the interest in the land which Wilson did not convey, be decreed to appellant.

On a hearing in the court below, the relief asked was denied and the bill dismissed. From that decree complainant appeals.

The covenants of seizin and good right to convey, if broken at all, are broken at the time the deed is delivered. They are present covenants, and do not run with the land. So that, in this case, when Wilson covenanted that he was well seized in fee, and had good right to convey, and only conveyed foursevenths of one part and three-sevenths of another portion, there was a breach of the covenants, to the extent of the portion for which he had no title; and appellant had a right of action against him on these covenants to recover the proportion of the purchase money which the interest not conveyed bore to the portion to which the title passed.

Under these covenants, it has never been held that the grantee must wait until he is evicted before bringing suit on the covenants. They are covenants that he then held the title in fee to the lands conveyed, and that he then had good and legal right to convey. The covenants are not that he shall have such a title before the grantee is evicted, but he then has it. Hence, if he does not then have such a title as he covenants he has, there is then a breach on the delivery of the deed; and if he has no title, he can have no lawful right to convey, and there is a breach of that covenant at the same time and in the same manner.

Then, there was a breach of these covenants when the deed was delivered. What was the measure of damages on these breaches? Manifestly, the loss sustained by the appellant. And what was that loss? Obviously, the value of the interests that Wilson attempted to convey and covenanted he had conweyed, but did not, as he was not the owner of it, and therefore could not convey it. It would be the proportion threesevenths of the purchase money bore to four-sevenths in one tract, and the proportion four-sevenths bore to three-sevenths in the other tract. These damages were, then, a present subsisting claim in favor of appellant before he made payment of any portion of the purchase money, and, had he been properly advised, he could have avoided the decree of foreclosure by interposing the failure of consideration of the note, or the damages as a...