Walton v. Campbell
| Decision Date | 03 June 1897 |
| Docket Number | 7369 |
| Citation | 71 N.W. 737,51 Neb. 788 |
| Parties | THOMAS WALTON v. SARAH E. CAMPBELL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before TIBBETS, J. Affirmed upon filing remittitur.
Ricketts & Wilson, for plaintiff in error:
The warrantor did not have sufficient notice of the pending action, and is not bound by the adjudication. (Rawle Covenants [ed. 1887], secs. 119, 120; Somers v Schmidt, 24 Wis. 417; Paul v. Witman, 3 W. & S [Pa.], 410; Davis v. Wilbourne, 1 Hill [S. Car.], 27.)
As the law does not grant a recovery for a contingent liability, no interest is recoverable unless mesne profits have actually been paid to the holders of the paramount title. (Cheney v. Straub, 35 Neb. 526; Rawle, Covenants [ed. 1887] sec. 196; Burton v. Reeds, 20 Ind. 91; Wacker v. Straub, 88 Pa. 32; Hutchins v. Roundtree, 77 Mo. 500.)
Expenses of defending the ejectment suit cannot be recovered except upon proof that they were incurred after due notice was given to guarantor of the pendency of that suit, and an opportunity to defend tendered him. (Mercantile Trust Co. v. South Park Residence Co., 22 S.W. [Ky.], 314.)
Notice to warrantor of a suit for eviction should be in writing.
Pound & Burr, contra:
The covenant of warranty ran with the land, and Mrs. Campbell could sue upon it.
Interest was recoverable. (Cheney v. Straub, 35 Neb. 521; Rhea v. Swain, 122 Ind. 272; Wilson v. Peelle, 78 Ind. 384; Wright v. Nipple, 92 Ind. 314; Mitchell v. Hazen, 4 Conn. 495; Hulse v. White, 1 N.J.L. 173; Harding v. Larkin, 41 Ill. 413.)
Expenses of the ejectment suit are part of the measure of damages, irrespective of notice. (Morris v. Rowan, 17 N.J. L. 304; Harding v. Larkin, 41 Ill. 413; Cheney v. Straub, 35 Neb. 521.)
Parol notice of the ejectment suit was sufficient to make the judgment therein conclusive upon guarantor.
The law does not require the notice to be in any particular form. (Hersey v. Long, 30 Minn. 114; Williams v. Burg, 9 Lea [Tenn.], 455.)
OPINIONThe facts are stated in the opinion.
In the record of this case we find a copy of a petition and of an answer which purport to have been filed in the county court as well as in the district court, of Lancaster county. In the caption of each of these pleadings there occur the words "In the county court of Lancaster county, Nebraska." There is nothing to show that there ever was a judgment in the aforesaid county court with respect to the issues presented by said pleadings; neither does it appear that the case tried in the district court, and sought to be reviewed in this court, was a continuation of, or in any way connected with, an action in the county court. We shall, therefore, ignore the arguments presented with reference to the alleged want of jurisdiction of the county court, and the alleged departure in the district court from the issues claimed to have been tried in the county court.
By her amended petition filed in the aforesaid district court, Sarah E. Campbell alleged that on November 6, 1876, Thomas and Martha Walton, in consideration of the payment of $ 200, had conveyed lot 12, block 32, in Dawson's Addition, in the city of Lincoln, to R. J. Campbell. The covenants of warranty contained in the deed whereby said conveyance was made were in the ordinary form, as set out in the petition, and the breach of these covenants was the cause of action stated. We shall hereinafter describe specifically such matters as in the course of this discussion shall require a specific statement. For the present it is sufficient to say the answer contained a general denial, and that by a reply the affirmative averments of the answer were traversed. There was a verdict and judgment as prayed in the petition. There was an averment in the answer that the defendant in error lost her title, if she did lose it, by reason of her negligent failure to make a proper defense in an action wherein her grantor was a defendant. There is found no evidence upon which this negligence could be predicated, for the proof of this matter was excluded, and the ruling in this respect is not called in question by the petition in error.
Another paragraph of the answer was as follows: "And these defendants, for a further and fourth defense, say that they were never notified that plaintiff's title to said lot was questioned or attacked, and had no notice of the pendency of any suit against the same." Until after the filing of this answer there had been mentioned both Thomas Walton and his wife; hence the pleadings up to that time referred to two defendants. Thenceforward there seems to have been but one defendant, Mr. Walton. It is not shown why this was, but as no importance seems to be attached to this circumstance, it will not be noted farther than to explain the use of the word "defendants," which occurs in the above quotation. The proofs were addressed only to facts with which Mr. Walton was connected, and were to this effect: R. J. Campbell testified that the action against himself and the defendant in error was brought by Frank M. Miles, in 1877 or 1878, as he thought; that whenever he met Walton on the street he talked with Walton about it; that Walton contended that they could not beat witness out of it; that witness told Walton witness was not fretting about it, because if witness lost the title he considered he had a good man to go back to, and that if witness lost the property he expected to go back on Walton; that Walton said that if witness went back on him for the purchase money, witness ought to transfer the title to Walton; that Walton talked this in the house of witness and, as he himself said, came there to talk that matter over. This witness said he was safe in saying he talked fifty times with Walton about this lawsuit while it was going on. Sarah E. Campbell, the defendant in error, testified that during the time the suit was pending in the United States circuit court Mr. Walton was at the home of defendant in error, and that it was talked that if the property was lost, Walton ought to have the title transferred back to him. Mrs. Campbell, in this connection, testified that Mr. Walton said: "If the Burrs had anything to do with it, let it go." She further testified that the theme of the conversation was: It is not just clear what Burrs were meant by the reference used in connection with that name by Mr. Walton. L. C. Burr was alleged, in the pleadings in the federal court, to be a party interested in the suit, as well as one of the attorneys of Mr. Miles. In this action the jury may have assumed that, as Mr. Burr was interested adversely to the title which Mr. Walton had covenanted to defend, it was to him that Mr. Walton alluded. The evidence was not, therefore, of casual conversations between the Campbells and Mr. Walton, but was with reference to a discussion sought by Walton with respect to the suit pending, in which Walton was told distinctly that in case the title failed he would be called upon to make it good. There would appear from this testimony to have been made no objection on Mr. Walton's part as to his liability, but that the utmost he claimed was that in event of a loss of the property, and impliedly of his answering for such loss, the property should be conveyed to him. Not only did this conversation go this far, but, in addition, Mr. Walton suggested that if a certain contingency existed the defendant in error should let the property go. While it has been held that a written notice is necessary under such circumstances, we believe the better rule to be that a notice of the character of that shown in this case is sufficient to conclude the warrantor by the pending adjudication adverse to the title which he had warranted. (Davenport v. Muir, 26 Ky. 310, 3 J.J. Marsh. 310; Ferrea v. Chabot, 63 Cal. 564; Miner v. Clark, 15 Wend. 425; Cummings v. Harrison, 57 Miss. 275; Chicago City v. Robbins, 2 Black 418; Hersey v. Long, 30 Minn. 114, 14 N.W. 508.) This general statement of our conclusion is intended not only to apply to the discussion by plaintiff in error of the sufficiency of the proof of notice to sustain the verdict, but as well to meet the objection to the refusal to instruct as requested with respect to the legal propositions which should govern in the consideration of this branch of the case.
It is urged that, as Mrs. Campbell claimed to have acquired title only by virtue of a quitclaim deed, the covenants sued on did not inure to her benefit. In the petition it was alleged that in 1876, Thomas Walton and his wife, though they had no title, assumed to convey the lot in question to R. J Campbell with covenants of warranty. It...
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