Atlantic Joint Stock Land Bank v. Williams , 209 N.C. 104 ( 1935 )

Connor, J.

For the purpose of determining the amount for which the plaintiff Atlantic Joint Stock Land Bank of Ealeigh is entitled to judgment in this action the court applied as a credit on the note executed by the defendants I. E. Williams and his wife, Lenoir M. Williams, and assumed by the defendant Myrtle W. Draughon, the amount of the damages, as found by the jury, for which the plaintiff is liable to its grantee, I. E. Williams, by reason of the breach of the covenants in its deed to said grantee, and declined to apply as such credit the amount of the damages, as found by the jury, for which the defendants I. E. Williams and his wife are liable to their grantee, the defendant Myrtle W. Draughon, by reason of the breach of the covenants in their deed to said grantee. In this there was no error.

In Campbell v. Shaw, 170 N. C., 186, 86 S. E., 1035, it is said: “Where there is a failure of title to a part of the land, or a partial breach of the covenant of seizure, the rule is thus stated: ‘The measure of damages for breach of the warranty of title to land is the proportion that the value of the land to which title fails bears to the whole consideration paid. That is, the proportion of the value of the land as to which the title fails bears to the whole, estimated on the basis of the consideration paid. Lemly v. Ellis, 146 N. C., 221.' If the vendee has procured a good title to remedy the defect his damages are the amount reasonably paid for buying the outstanding title, not exceeding the original pro rata of the purchase money for that part of the land. It would be error to take the basis of the present actual value of the land where there is evidence that the actual value exceeds the consideration. Price v. Deal, 90 N. C., 291; Bank v. Glenn, 68 N. C., 36; Dickens v. Shepperd, 7 N. C., 526.”

The judgment in this action is affirmed.

No error.

Devin, J., took no part in the consideration or decision of this case.