Anderson v. Knox , 20 Ala. 156 ( 1852 )

CHILTON, J.

We are of opinion that the court properly overruled the demurrer to the declaration. It seems to be well settled, that in an action upon a covenant of seizin, the breach may be as general as the covenant. See Sedgwick on Damages, 181, and cases there cited. In this case, the pleader has averred the existence of an outstanding t tie or incumbrance, showing in what it consists, and also that the plaintiff below purchased it, in order to perfect his title, at the price of seven hundred and fifty dollars. In order to pass the title conveyed by Lucy Mayhew to George Whitman and his wife, it was necessary that they should have conformed to the mode prescribed by the power contained in the deed to them. This they failed to do, and notwithstanding the execution of the deed from Whitman to Bunckley, under whom Anderson claimed, the power to appoint other limitations, inconsistent with the absolute title attempted to be conveyed by Anderson to Knox, still existed, and this of itself constituted an incumbrance upon Knox’s title, amounting to a breach of Anderson’s covenant, and justifying Knox in purchasing its extinguishment by a revocation of the limitations created by Lucy Mayhew’s deed, and in procuring an appointment to himself of the fee.

2. It is well settled, by numerous authorities, that a cov--enant of seisin is broken as soon as made, if tbe covenantor bad no title to the estate granted. See 2 Bacon’s Abr. by Bouvier, tit. Covenant, p. 595, and cases there cited.

S. So, also, an unqualified covenant against incumbrances is broken by the existence, at the time of its execution, of an outstanding incumbrance. Ib.; Wyman v. Ballard, 12 Mass. Rep. 304; 17 ib. 220; Andrews v. McCoy, 8 Ala. Rep. 920. If, however, the covenant merely extends to quiet enjoyment against incumbrances, then it is broken only by an entry, or expulsion from the premises, or some disturbance in the possession, 2 Bacon, 595, supra.

4. As Knox was not bound to wait until after he was disturbed in his possession, in order to entitle him to his action for a breach either of the covenant of seizin or against incum-brances, he would be entitled, at least, to nominal damage; but if he has proceeded to purchase in the outstanding title or incumbrance, as he well may do, then he is entitled to recover the reasonable price which he has fairly and necessarily paid for the same. He can recover no more than the price paid, with interest from the time of payment, but may recover less, as the proof may satisfy the jury that the title or incumbrance was not worth the amount paid, or could have been procured for less. Harbin v. Thomas, 15 Pickering, 69; Mitchell v. Hazen, 4 Mass. 412; and cases on the brief of defendant’s counsel. See also Dunn v. White & McCurdy, 1 Ala. Rep, 645.

5. But in charging the jury, that in the absence of any other evidence, of the value of the outstanding incumbrance, they might take the amount paid by the plaintiff (Knox) as evidence of .such value, the Circuit Court mistook the law. It was incumbent on him to prove, in order to recover more than nominal damages, not only the amount paid, but that such payment was the reasonable value of the interest acquired. To hold that it was reasonable, from the bare fact of payment, is to assume as true the fact to be proved.

The payment was an act done, in which Knox and Whitman were alone the actors. Anderson was neither a party, nor privy to it, and, as to him, it was clearly res inter alios acta, and, according to the established rules of evidence, inadmissible to fix tbe amount with which he should be charged, but allowable only as a fact, which, if connected with proof of its fairness, would entitle the plaintiff below to recover the sum so paid.

That Knox offered to prove the reasonableness of the payment, and was prevented by an objection interposed by the other side, which the court sustained, did not justify the jury in acting without proof, or in considering that as proof which would otherwise be incompetent. This part of the charge, therefore, was erroneous.

The views above expressed show that the court properly refused the charged prayed for by the counsel for the defendant in the court below.

Let the judgment be reversed, and cause remanded.