Dickson v. Briggs , 12 Ala. 217 ( 1847 )

GOLDTHWAITE, J.

1. The questions raised by the demurrer, and by the proof at the trial, are slightly different, yet sufficiently similar to enable us to consider them together. The demurrer in effect denies there is any cause of action until the plaintiff has been disturbed or evicted from the possession ; and the request for the particular charge insists the plaintiff’s payment of the debt due from the former purchaser is not to be answered by the damages in this suit. If the legal effect of the covenant in this case, is one for quiet enjoyment only, it is quite probable there would be no breach without some disturbance of the possession, and it may be the declaration should then contain averments of something equivalent to eviction. [Platt on Cov. 320; 2 Lomax Dig. 269; Caldwell v. Kirkpatrick, 6 Ala. Rep. 60; Banks v. Whitehead, 7 Ib. 83.] It seems to us, however, that when the defendant stipulates he will satisfy the dispute respecting the title which the bond admits to exist, .this must receive the same construction as a covenant to remove incumbrances, or a covenant that the estate is free from incumbrances. It will be seen the other covenants extend fully to quiet enjoyment, and for indemnity in case of eviction. The only object, then, for inserting the stipulation to satisfy the dispute, must have been to bind the party to remove the dispute from the title. It is well settled, that a covenant that premises are free from incumbrances, is broken immediately on the execution of the deed, if there are any such then on the land, and that the grantor need not wait to be evicted, but may extinguish them and call on the grantor for indemnity. [Prescott v. Truman, 4 Mass. 627; Delavergne v. Norris, 7 Johns. 358; Duval v. Craig, 2 Wheat. 45.] There is no reason why a less beneficial construction should be given to a contract to remove an incumbrance. Certainly the purchaser ought not to be prejudiced by the vendors allowing it to remain for an unreasonable length of time. In our judgment, such a stipulation as is found here requires the cove-nanter to remove it within a reasonable time, and upon his default to do so, the purchaser may himself remove the cause of dispute, and require indemnity from the covenanter by suit on the bond.

2. The evidence shows the defendant derived his title to the lot by deed from one who purchased from the commissioners of Franklin county, but to whom no conveyance was executed on behalf of the county, and that two of the notes given by this individual for the purchase money, were unpaid and outstanding. The effect of this is, that the legal title remained with the county, and could have been exerted against the obligee, at least to the extent of enforcing a lien upon the lot for the unpaid purchase money. If, instead of enforcing the title of the county to the lot, the commissioners were willing to relinquish it on the payment of the outstanding notes, we think it clear, from the analogies to which allusion has been made, the plaintiff was authorized, upon the defendant’s default, to make the necessary payment, and resort to his action on the bond. The measure of damages under such circumstances, is the amount reasonably expended in effecting the removal of the incumbrance.

Under these views, we consider the declaration is sufficient, as it assigns the breach in the terms of the covenant; and that the rulings of the court at the trial are free from error.

Judgment affirmed.