Pinkston v. Huie , 9 Ala. 252 ( 1846 )

GOLDTHWAITE, J.

1. It is insisted, the plaintiff is not entitled to recover on the case made by the pleadings, because the effect of the bond, to which the defendant is the surety, is to bind the husband to procure the conveyance only, of Mrs. Clisby’s dower estate in the land described; and King v. Mosely, 5 Ala. Rep. 610, is cited as warranting this position. In that case, the husband and wife were the joint obligors,' and the court construed the condition to refer only to the relinquishment by the wife of her dower -estate ; but here there is no room for construction, as it is recited in the condition of the bond, that the lands sold by the husband were actually the property of the wife, and the obligation intended to be created is, that she, entirely independent of her husband, should convey the title in fee, upon her coming to full age. We entertain no doubt whatever, that the obligors in the bond, were bound to procure her to execute a conveyance in fee.

2. The next position is, that the bond should have been presented to the defendant, as a claim against the estate within eighteen months after the grant of administration, although Mrs. Clisby, during the entire time was a minor, and did not arrive at the age of twenty-one years, until a short time previous to the commencement of the suit. This proposition is supposed by the defendant’s counsel to be also sustained by the case just cited. There, the suit was on a covenant to malee title when the purchase money should be paid, and it was considered the covenant became a claim, within the meaning of the statute, from that period, and not from the time when the execution of the conveyance should be required. Here, however, there could be no pretence for a claim until Mrs. Clisby became of age, for until then it could not be known that the principal obligor would be in default. The utmost extent of the doctrine held in King v. Mosely, goes no further than the assertion of the principle, that a claim which either is due presently, or in future, must be presented; but does not include a demand or claim which is dependent upon a future contingency. We consider the demurrer was properly sustained to the 10th plea, as that is the one which presents the defendant’s defence in this aspect.

3. Next in order is the objection, that no more than nominal damages should have been allowed, inasmuch as the plaintiff was invested with the husband’s title to the land at the time of purchase, and because this was not reconveyed, or the possession relinquished. In considering this point, we shall throw out of view all that is matter of speculation, as to the effect of the abandonment by the purchaser of the land, as well as the consequences growing out of the husband’s conveyance, and meet it as if he continued in possession under that conveyance. In this connexion it will be seen that the covenant contained in this bond, has no resemblance to a covenant of warranty, or a covenant for quiet enjoyment; but even if it was such, the general rule in relation to evictions, does not extend to the acts of particular individuals named in the covenant. [Fowle v. Welsh, 1 B. & C. 29; Perry v. Edwards, 1 Strange, 400.] The rule, that a covenant for quiet enjoyment, is not broken until an eviction, is technical, and does not' extend to a bond of indemnity. [Trustees v. Gallatian, 4 Cowen, 340.] The reason why a bond providing for a particular act to be done by some third person, in relation to the conveyance of title, cannot be considered as equivalent to a covenant for quiet enjoyment, is, that such person is in no way affected by the contract between the vendor and the purchaser; and the latter, in addition to the title which he receives, or contracts to receive, from the former, requires other and additional stipulations, with relation to another, which is known or supposed to exist elsewhere. We come, then, to the conclusion, that so far as the action on this bond is concerned, or the amount tO’ be recovered, it is immaterial whether Huie has abandoned the premises or yet remains in possession.

4. The only remaining question is, whether the purchase money paid by Huie, when he purchased the land from Clisby, is the proper criterion by which to estimate his damages; and in the examination of this, as the other just noticed, it is proper to state the precise facts of the case before us. The condition of the bond recites that Clisby, at the date of the bond, had sold and conveyed the lands, which were the property of his wife, to Huie, and the covenant is, that the husband and wife, within a convenient time after she came to the age of twenty-one years, should execute and deliver to Huie a good and lawful fee simple title to said land, with full covenants, as usual. Now whatever may be the effect of this condition as to the title which Clisby might be required to execute, we consider it clear, that a conveyance in fee by MrsClisby after she came of age, would be a compliance, so far as she is concerned, whatever might be her title at the date of the covenant, or afterwards. Her title to the lands, at the time of the contract, was the subject matter of the contract. It is evident, too, that this was not alone the matter which Huie paid for, inasmuch as Clisby then not only sold, but conveyed the lands; this conveyance would be effectual, to pass all the title acquired by Clisby, in virtue of his marriage ; which, at the least, would extend to the possession, during the life of his wife. It is said, in argument, that the fact is, the land is settled on Mrs. Clisby, to her sole and separate use; but conceding this to be so, it is scarcely possible the purchaser would be held accountable for the issues until the exertion of the wife’s claim. We must, however, determine the case as it appears on the record, and decline to consider how it would be affected by circumstances which do not appear. It is the case of a purchaser, stipulating by a collateral instrument, for the acquisition of a specified outstanding title ; and whatever may be the rule with respect to the measure of damages, when the covenant broken is to convey generally a good title, we think, that here it is the value of the particular title agreed to be extinguished. This will be entirely evident, when we consider what the rights of Huie may possibly be. under a conveyance of this sort, from the husband. As we have said before, the husband, by virtue of his marriage, becomes a joint tenant with his wife in the possession, and use of her lands, and though this right may be extinguished by her death, in the event of her having no issue by the husband, born alive, capable of inheriting the estate, yet upon the birth of such issue, he becomes a tenant for his own life. As a purchaser therefore may, in some cases, be invested with a title by the deed of the husband alone, it is clear, the general rule in a case like this, by which to estimate the damages, cannot be the purchase money paid. The case of Tanner v. Livington, 12 Wend. 83, seems fully to recognize this principle. There the action was upon a covenant, that the grantors were seized of an indefeasible estate of inheritance, in fee simple, and it was held, the purchaser having entered into possession, was not entitled to recover the purchase money paid, upon showing that the grantors were seized of life estates only; but that the value of the life estates might be shown, for the purpose of regulating the damages. This decision, it will be borne in mind, was made upon a* covenant contained in the deed of conveyance. In Howard v. Person, 2 Hay. 336, the intestate of the person sued, was bound to procure a tract of land, of a certain description, for the plaintiff, by the time he became of age. The court held, the damages Avere the value of the lands at the time of his arriving at age. In Letcher v. Woodson, 1 Brock. 212, Chief Justice Marshall held, in an action upon a bond, that a vendor binding himself to convey the title at a future day, and being then unable to do so, was liable in damages to the value of the lands at the time of the contract, though he conceded that the intervention of other circumstances might change the mode of estimation. The rule with respect to chattels is, in general, the price of the article at the time fixed for its delivery. [Sheppard v. Hampton, 3 Wheat. 200; see also Shannon v. Comstock, 21 Wend. 457.] And it is said, in a note to Letcher v. Woodson, that there is no difference in principle, whether the contract is for the sale of lands or chattels. Whatever may be the rule, when the covenant is by the vendor, to make a good title, we think, in this case, the stipulation being for the title of a particular person, the true criterion of damages is the value of that title at the time it was to be executed, with interest upon that value to the time of trial. This will leave the contract of the purchaser, by which he has procured a conveyance from the husband, and his possession as it was; it will give the value of the title contracted for, instead of its price; on the other hand, if its value has been impaired by use, or depreciated from other causes, there seems to be no sound reason why the purchaser should recover the entire purchase money.

As the instructions to the court below to the jury, assumed a different estimate as proper, the judgment is reversed and fhe cause remanded,