Wilcox v. Musche

• Decision Date: 18 June 1878
• Court: Michigan Supreme Court
• Parties: Alfred F. Wilcox v. John B. Musche

39 Mich. 101

Alfred F. Wilcox v. John B. Musche

Supreme Court of Michigan

June 18, 1878

Submitted June 12, 1878

Error to Superior Court of Detroit. 18.

Covenant. Defendant brings error.

Judgment reversed with costs and a new trial ordered.

Henry Z. Potter and A. F. Wilcox in person for plaintiff in error. Breach of covenant against incumbrances will only support nominal damages where the covenantee has not been evicted and has paid nothing to remove the incumbrance, Rawle Cov. of Title, 184; Sedgwick on Measure of Damages, 199; Prescott v. Trueman, 4 Mass. 627; Delavergne v Norris, 7 Johns. 358; Hall v. Dean, 13 Johns 105; De Forest v. Leete, 16 Johns. 122; Standard v. Eldridge, 16 Johns. 254; and where he has extinguished the incumbrance the measure of damages is the amount he has fairly paid to extinguish it, provided such sum does not exceed the purchase price, Willson v. Willson, 25 N. H., 229; Comings v. Little, 24 Pick. 266; Foote v. Burnet, 10 Ohio 317; Grant v. Tallman, 20 N. Y., 191; Harlow v. Thomas, 15 Pick. 69; Willets v. Burgess, 34 Ill. 500; 4 Kent's Com., 582; if he has been evicted, the measure of damages has been held to be the value of the land at the date of eviction, with interest from that time, Waldo v. Long, 7 Johns. 173; Barrett v. Porter, 14 Mass. 143. Where the covenantee sustains no actual damages from a breach of the covenant, but his grantee is evicted or compelled to pay off incumbrances, the grantee can recover from the original covenant or his actual damages, Martin v. Baker, 5 Blackf. 232; Backus v. McCoy, 3 Ohio 211; Devore v. Sunderland, 17 Ohio 52; Stinson v. Sumner, 9 Mass. 143; Dickson v. Desire, 23 Mo. 151; Richard v. Bent, 59 Ill. 38.

Charles M. Swift for defendant in error. Where land is sold subject to a mortgage to another person, and the grantor inserts in the deed a covenant to pay off the mortgage with interest when it falls due, the covenantee, on breach thereof, can recover the full amount of the mortgage and interest, even though he shows no special damage to himself from the breach of the covenant, Rawle Cov. for Title [4th ed.], 94; Sedgwick Meas. Damages [6th ed.], 305; Lethbridge v. Mytton, 2 B. & Ad., 772; Loosemore v. Radford, 9 M. & W., 657; Hodgson v. Wood, 2 H. & C., 649; Carr v. Roberts, 5 B. & Ad., 78; Port v. Jackson, 17 Johns. 238; Mann v. Eckford's Ex'rs, 15 Wend. 502; Wicker v. Hoppock, 6 Wall. 99; Trinity Church v. Higgins, 48 N. Y., 532; Webb v. Pond, 19 Wend. 423; Furnas v. Durgin, 119 Mass. 500; Hall v. Nash, 10 Mich. 303; Wheelock v. Rice, 1 Doug. (Mich.), 267; Thompson v. Richards, 14 Mich. 172; Butler v. Ladue, 12 Mich. 173; Booth v. Starr, 1 Conn. 249; Churchill v. Hunt, 3 Den. 321; Gardner v. Niles, 16 Me. 280; Lathrop v. Atwood, 21 Conn. 123; Hogan's Ex'rs v. Calvert, 21 Ala. 199.

OPINION

Graves, J.

On the 6th of June, 1873, Wilcox was owner of lot 18 [of Walker's subdivision of park lots 49, 50, 51 and 52] in Detroit, extending from Woodward avenue to Cass avenue, a distance of some five hundred feet, and on that day he borrowed $ 6500 for three years, and as security gave his personal bond and also a mortgage on the whole of this lot. May 2d, 1875, he sold defendant in error a small part of the lot, being fifty feet front on Cass avenue and about one hundred and eighty feet deep, and equal in value to about one-eighth of the value of the entire lot.

He gave a deed in which his wife joined, of the piece sold, and inserted the following covenants:

"And the said parties of the first part, for themselves, their heirs, executors and administrators, do covenant, grant, bargain and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents they are well seized of the above granted premises in fee simple. That they are free from all incumbrances whatever except a mortgage of $ 6500 on this and the remainder of said lot 18, which they agree to pay and remove when due, and that they will, and their heirs, executors and administrators, for them shall warrant and defend the same against all lawful claims whatsoever."

The premises have been enjoyed by the defendant in error without any disturbance and he has never paid or been called on to pay anything in consequence of the mortgage. But as the mortgage was not paid when it became due, the defendant in error instituted this suit on the covenant relating to it in the deed. There was neither an averment of special damage nor any offer to prove such damage. It appeared that the plaintiff in error remained owner of the rest of the lot and that although the consideration was described as being $ 2000, it was actually less.

The court instructed the jury to find for defendant in error the full amount called for by the mortgage together with the interest thereon, and they accordingly returned a verdict for $ 7095.

The main contention is upon this allowance of damage: the plaintiff in error insisting that only nominal damages were authorized, and the defendant in error defending the allowance made.

The real question is one of interpretation to ascertain the true intention of the parties, and a proper solution requires that attention should be given to the whole instrument and also to the surrounding circumstances.

The mere letter of the deed is not positively controlling. Broom's Max., 611; Wharton, 167. We may fairly suppose the parties were seeking reasonable and just ends, and that neither contemplated any harsh or oppressive result or any result not agreeable to prudence or natural equity. The defendant in error was buying only a small portion of the mortgaged premises, and there was no ground for apprehending that the...