Wadhams v. Innes
| Decision Date | 31 October 1879 |
| Citation | 4 Ill.App. 642,4 Bradw. 642 |
| Parties | SETH WADHAMSv.ETHEL L. INNES ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. W. K. MCALLISTER, Judge, presiding. Opinion filed December 8, 1879.
This was an action of covenant, brought by Seth Wadhams against Ethel L. Innes and Catherine Innes, to recover damages for an alleged breach of the covenant of seizin, in a deed from them to him. The deed in question bore date August 19, 1873, and purported to convey from said Ethel L. Innes to the plaintiff, in fee, the south one-third of section seventeen, township thirty-six north, range fourteen, east of the third principal meridian, in Cook county, Illinois. It appears by the recitals in the deed that said Catherine A. Innes joined in said deed for the purpose of releasing her dower and all other claims she might have in said land. The deed contained the usual covenant that at the time of the ensealing and delivery thereof the grantors were well seized of the premises thereby conveyed, as of a good, true, sure, perfect, absolute and indefeasible estate of inheritance in law, in fee simple, and had a good right, full power, and lawful authority, to grant, bargain, sell and convey the same in manner and form aforesaid. The breach assigned is, that, as to a strip of land two hundred feet wide across said tract, constituting the right-of-way of the Illinois Central Railroad Company, the defendants were not seized, etc., and had not power to convey the same, but, on the contrary, said railroad company was lawfully seized in fee simple thereof, and alone had power to convey it. Said strip of land contains eight and seventy-two one-hundredths acres.
The evidence shows that prior to the execution of said deed, Ethel L. Innes and her two sisters, as the heirs-at-law of their father, Robert Innes, deceased, were the owners in fee of the entire section seventeen, except that portion thereof occupied by the right-of-way of said railroad company, subject to the dower of their mother, Catharine A. Innes. Prior and up to July 1, 1854, said section seventeen was a part of the public land belonging to the United States, except that said railroad had, prior to that time, and while said land was public land, been located and constructed across said section, and that said railroad company claimed and had all such right, title and interest in and to the land occupied by its right-of-way as it could acquire under the acts of Congress and of the General Assembly of Illinois, in relation thereto. On the day last mentioned the United States conveyed said section to one Joseph Robinson, by patent, from whom, by mesne conveyances, one Cook, on the 22nd day of June, 1861, had become seized thereof, but to no greater extent than was said Robinson. On the day last named, said Cook conveyed said section to said Robert Innes, the description thereof in the deed, however, containing the following exception, viz: “Except so much as is occupied by Illinois Central Railroad.” By a survey of said section it appears that the whole section contains six hundred and forty-six acres.
It was admitted that for fifteen years prior to the commencement of this suit, said railroad company had maintained a fence on each side of its track, and one hundred feet distant therefrom, across the entire section. The land included within the fences is shown by the evidence to be of the same relative value as the other portions of the tract in controversy.
It appears that, on the 1st day of August, 1872, the owners of the entire section, desiring the improvement and sale of said land, entered into a written contract with Messrs. Young, Rowley & Smith, real estate brokers in Chicago, by which it was agreed that said brokers should have control of said land, improve it and negotiate sales at not less than $90 per acre. After this contract was made, said brokers sold the entire tract to the plaintiff for $125 per acre, or $80,000, they supposing the section to contain the usual amount of six hundred and forty acres. It appears that the plaintiff knew of the existence and location of the railroad before and at the time of the purchase, and one of the brokers, Smith, testifies that while the negotiations were in progress, he had a conversation with the plaintiff in which the witness spoke, in a general way, of the advantages of the property, of the railroad, of depots, and of sub-dividing the land. Nothing was said in that conversation about the number of acres belonging to the railroad.
Two trials have been had in the court below, both resulting in a verdict for the plaintiff, with an assessment of only nominal damages. The first verdict was set aside on motion of the plaintiff, and a new trial granted; but the court denied the plaintiff's motion for a new trial after the second verdict, and rendered judgment in his favor for one cent damages, and costs. From that judgment the plaintiff has prosecuted this appeal.
Mr. W. H. HOLDEN, for appellant; as to the measure of damages upon breach of covenants, cited Major v. Dunnavant, 25 Ill. 262; Weber v. Anderson, 73 Ill. 439; Wood v. Kingston Coal Co. 48 Ill. 356.
Knowledge by either party that the grantor had no title, does not affect the right of recovery: Beach v. Miller, 51 Ill. 206; Morgan v. Smith, 11 Ill. 194; Tone v. Wilson, 81 Ill. 529.
The right of way entitles the railroad to the exclusive possession: Troy & B. R. R. Co. v. Pother, 42 Vt. 365.
Instructions should be based on evidence: Coughlin v. The People, 18 Ill. 266; Hamilton v. Singer Mfg. Co. 54 Ill. 370; Piner v. Cover, 55 Ill. 391; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 314; Holcomb v. Davis, 56 Ill. 413; Rockford Ins. Co. v. Nelson, 65 Ill. 415; Seckel v. Scott, 66 Ill. 106.
An instruction that a substantial compliance with the covenant, was erroneous: Taylor v. Beck, 13 Ill. 376; Estep v. Fenton, 66 Ill. 467; Aurora Ins. Co. v. Eddy, 55 Ill. 213.
Instructions should not mislead: Trustees v. McCormick, 41 Ill. 323.
Inadequacy of the verdict is as much a ground for reversal as would be its excessiveness: Carr v. Miner, 42 Ill. 179; James v. Morey, 44 Ill. 352; McDonald v. Walter, 40 N. Y. 551; Richards v. Sanford, 2 E. D. Smith, 349; English v. Clerry, 3 Hill, 279; Fowler v. Word, Harp. 372; Bacot v. Keith, 2 Bay, 466; Robbins v. Hudson, R. R. R. Co. 7 Bosw. 1; Brewer v. Lyringham, 12 Pick. 547: Hood v. Ware, 34 Ga. 328; Taunton Mfg. Co. v. Smith, 9 Pick. 11; Bishop v. Mayer, 7 Ga. 200.
Mr. JOHN W. SHOWALTER, for appellees; as to the measure of damages, cited Leland v. Stone, 10 Mass. 459.
The only question we are called upon to determine in this case is, whether, under the evidence, the plaintiff is entitled to only nominal damages. That the covenant of seizin was broken, is conclusively established by the verdict, finding the issues for the plaintiff. It may be remarked, however, that such finding was not only in accordance with, but necessarily followed from, the evidence in the case. By their deed, the defendants assumed to convey...
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