Williams v. Azar
| Decision Date | 25 July 1950 |
| Citation | 47 So.2d 624 |
| Parties | WILLIAMS v. AZAR et ux. |
| Court | Florida Supreme Court |
Sam E. Murrell and San E. Murrell, Jr., Orlando, for appellant.
Sanders & McEwan, Orlando, for appellees.
Plaintiff-appellant sued the defendants-appellees in the Circuit Court of Orange County, Florida, for a breach of covenant of seizen of described land. The case went to trial on the first and third counts of plaintiff's third amended declaration. The first count alleged that the defendants-appellees on January 20, 1948, by warranty deed conveyed described lands to the plaintiff and therein covenanted that the defendants were lawfully seized of the premises and had good right and lawful authority to sell the same. It further alleged that the defendants-grantors in the deed were not lawfully seized at time of the conveyance of the described lands and were without lawful authority to sell the same because one Byrd Parrish and wife Emma Parrish were at the time of the conveyance in the adverse possession of the west eight feet of the described land. For said reason the plaintiff was not able to obtain possession of the part of the described lands held by the Parrishes for a period of ten months and the plaintiff expended large sums of money to defend, clear and quiet title thereto and said expenditures were reasonable and necessary. Damages in the sum of $3,000 were requested.
The third count alleged the execution and delivery to the plaintiff of a warranty deed to described land by defendants-appellees and for which the plaintiff-appellant paid them the sum of $8,500. It alleged that in and by the warranty deed the defendants-appellees convenanted that they were lawfully seized of the described lands; they were free from encumbrances and had a lawful right to sell the same; plaintiff alleged that the defendants-appellees were not lawfully seized and possessed of the west eight feet of the described land, as said eight foot strip was in the possession of Byrd Parrish and wife Emma Parrish, and the alleged adverse possession asserted by the Parrishes in law constituted a breach of the covenant of seizen as contained in the warranty deed. It was necessary for the plaintiff-appellant to prosecute and obtain a judgment in ejectment against the Parrishes and in so doing expended moneys for court costs, lawyer fees, surveyor's fees, and other lawful items, reasonably necessary to evict the Parrishes from said eight foot strip of land and said sums so expended were obligations of the defendants-appellees and constituted a breach of their covenant of seizen contained in the warranty deed to plaintiff-appellant dated January 20, 1948. Plaintiff claimed damages in the sum of $3,000.
Attached to the amended declaration is a copy of the warranty deed from the defendants-appellees to the plaintiff. Reference in the record is made to the ejectment suit by the plaintiff against the Parrishes in which judgment in behalf of the plaintiff was entered for the eight foot strip across the west side of the lot so conveyed. Various pleas were filed to the counts of the declaration and the trial court held that the plaintiff-appellant was entitled to a judgment for nominal damages and nothing more. Verdict and judgment for the plaintiff in the sum of $1 was entered below. The plaintiff appealed.
Counsel for appellant in the lower court contended that the reasonable damages incurred in the ejectment suit against the Parrishes resulting in a judgment of ouster as falling within the covenant of seizen of the warranty deed and recoverable in this suit were the following items: (1) Clerk's costs in the sum of $7.50; (2) Sheriff's costs in the sum of $5.45; (3) Court Reporter's costs in the sum of $10; (4) Surveyor's fees in the sum of $25; (5) Attorney's fee for the plaintiff in the ejectment suit in the sum of $500. The record fails to disclose a bill of particulars or a motion requiring one to be filed. The trial court held that the defendants-appellees were liable at law for a breach of the covenant of seizen so covenanted in the defendants-appellees warranty deed but held that the law allows and permits the recovery only of nominal damages. Counsel for appellees contend that the judgment entered below should be affirmed.
The controlling question presented on this record is the measure of damages recoverable in an action for a breach of covenant of seizen as reflected by the record in this controversy. Pertinent language of the warranty deed sued upon is viz.: 'and the parties of the first part do covenant with the party of the second part that they are lawfully seized of said premises, that t...
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Allard v. Al–nayem Int'l Inc.
...that the 30–foot strip of property was not of any greater value per square foot than the major piece.” Id. (also citing Williams v. Azar, 47 So.2d 624 (Fla.1950) (holding that grantor should pay costs of clearing title not to exceed the original proportionate value of the land at the time o......
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Tibbetts v. Nichols, 90-1644
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