White & Corbitt v. W.W. Stewart & Co.

• Decision Date: 14 October 1908
• Citation: 62 S.E. 590,131 Ga. 460
• Parties: WHITE & CORBITT v. W. W. STEWART & CO.
• Court: Georgia Supreme Court

62 S.E. 590

131 Ga. 460

WHITE & CORBITT v. W. W. STEWART & CO.

Supreme Court of Georgia

October 14, 1908

Syllabus by the Court.

In an action on a general warranty of title to land against the claims of all persons, an eviction or equivalent disturbance by an outstanding paramount title must be alleged.

[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Covenants §§ 197, 198.]

If a deed purports to convey the right, title, and interest of the grantor in and to certain described realty, instead of conveying the realty itself, the covenants in the deed will be limited to the right or interest which the grantor has in the property.

[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Covenants § 38.]

Covenants of title do not apply to land not included in the conveyance.

Error from Superior Court, Coffee County; T. A. Parker, Judge.

Action by W. W. Stewart & Co. against White & Corbitt. Judgment for plaintiffs, and defendants bring error. Reversed.

Lankford & Dickerson, for plaintiffs in error.

C. T. Roan and F. Willis Dart, for defendants in error.

FISH C.J.

Stewart & Co. brought an action against White & Corbitt on an alleged breach of warranty of title to land. A demurrer to the petition was overruled, and the defendants excepted. The allegations of the petition, taken in connection with the copy of the deed annexed thereto as an exhibit, material to the consideration of the points raised by the demurrer, were: Defendants in October, 1905, in consideration of a given sum, sold an assigned their interest in certain turpentine leases, and sold and conveyed the timber suitable for turpentine purposes on other described lands, to plaintiffs, who entered into possession of all of such property "under said deed and conveyance, and spent large sums of money thereon." Defendants did not have good and sufficient title to any of the property when they executed the conveyance, or when the suit was instituted; but the real and genuine title to a given portion of the property was outstanding in a named third person, and that to the balance of the property in another designated person, and defendants knew this when they sold and conveyed to plaintiffs. The deed contained a general warranty of title against the claims of all persons. It was alleged "that the title warranted to [plaintiffs] by defendants as aforesaid has utterly failed, to their injury and damage in the sum of $2,750, for which this suit is brought to recover."

1. One point made by the demurrer was to the effect that the petition did not allege that plaintiffs had been evicted or that their possession had been in any way disturbed. This point was well taken. Civ. Code 1895, § 3614, provides "A general warranty of title against the claims of all persons includes in itself covenants of a right to sell, and of a quiet enjoyment and freedom from incumbrances." The language of section 3617 is: "In suits for breach of warranty the burden is on the plaintiff, except in cases where outstanding incumbrances have been paid off, or possession has been yielded in consequence of legal proceedings of which the warrantor had notice and an opportunity to defend." These sections of the Code clearly indicate that the distinction between the covenants of right to convey and of warranty, usually recognized in most jurisdictions, no longer exists in this state, in so far as to what is necessary to constitute a breach of such covenants. Under the Code the general warranty of title against the claims of all persons practically stands for the covenant of warranty at common law, and includes in itself what was there known as the covenant of good right to convey. This court has frequently held that, "in an action for the breach of a covenant of warranty of title, the burden is upon the plaintiff to show eviction under a paramount outstanding title." McMullen v. Butler, 117 Ga. 845, 45 S.E. 258, and cases cited. A case not there cited is Clements v. Collins, 59 Ga. 124, wherein it was held: "In a suit upon warranty of title to land, unless it can be ascertained from the evidence that title paramount has been asserted against the warrantee, or some person claiming under him, and that he has yielded to it, or is in a situation requiring him to yield presently, as matter of legal duty, no breach is established." If an eviction, or its equivalent, must be proved in such an action, then, of course, it must be alleged; for a recovery can only be had secundum allegata et probata. In the case under consideration there was not only the mere failure to allege an eviction or an equivalent disturbance of the plaintiffs' possession, but it appears that plaintiffs entered into possession under the conveyance made to them by the defendants, and in the absence of any averment to the contrary the presumption is that plaintiffs have since remained in possession, and therefore were in possession when this action was begun. Mallard v. Allred, 106 Ga. 503, 32 S.E. 588. Non constat but that they have worked the timber for turpentine purposes from the date of their entry. Manifestly it would be wrong to allow plaintiffs to thus get the benefits of turpentining the timber, of keeping the possession of the same, and of recovering the purchase price paid for it. Generally damages for the breach of a covenant must be measured by the actual loss to the covenantee. In this case it does not appear from the petition that plaintiffs have suffered any loss whatever. The rule seems to be everywhere recognized that to constitute a breach of the covenant of...