Myers v. Brodbeck

Mr. Justice Green

delivered the opinion of the court, October 5th, 1885.

The covenant sued upon in this case is a covenant against incumbrances, and the recovery under the direction of the court below was for the money actually paid by the covenantee. All the authorities seem to concur in stating this to be the measure of damages in such cases. Thus in Pitcher v. Livingston, 4 John., 1, the court said, Van Ness, J.: “ The covenant against incumbrances stands upon a different footing, and is governed by different principles. That is strictly a covenant of indemnity and the grantee may recover to the full extent of any incumbrances upon the land which he shall have been compelled to discharge. But even there it -will be found that the same rule'prevails in fixing the amount of damages as in actions upon the covenants of seisin and for quiet enjoyment, that is, the party recovers what he lias paid with the interest and no more.” In Delavergne v. Norris, 7 Johns., 358, the court said: “If the plaintiff when he sues on a covenant against incumbrances has extinguished the incumbrance, he is entitled to recover the price he paid for it. But if he has not extinguished it, but it is still an outstanding incumbrance, his damages are but nominal, for he ought not to recover the value of an incumbrance on a contingency where he may never be disturbed by it.”

In Funk v. Voneida, 11 S. & R., 109, this court said: “A mortgage, though there can be no recoveiy on it until a year after the last instalment becomes due, is a present incumbent weight on the inheritance from the moment it was given. The law on this subject is laid down with precision and accuracy in the very able judgment of Chief Justice Parsons in Prescott v. Trueman, 4 Mass., 630: ‘If a mortgage is the incumbrance, it being only a collateral security, the grantee can only recover nominal damages unless he has'removed it, because the mortgagee can compel the mortgagor to pay the debt which is the principal security; but if the grantee has paid it so that the mortgage is discharged, the sum secured by the mortgage is the measure of damages.’ And I am of the opinion that where the mortgage money is not due, but the grantee chooses to pay it, the jury ought to allow him the fair price it necessarily cost him, for it would be a most inconvenient doctrine to hold that the vendee was to wait ten years until the last instalment became due, and the vendor a beggar. But whether the plaintiff paid it or not, still he was entitled to nominal damages; the covenant was broken.”

Mr. Rawle, in his excellent work on Covenants for Title, p. 289, speaking of the case of Delavergne v. Norris, supra, says: “This case has been frequently cited and approved, and the rule that nominal damages only are to be recovered for a merely technical breach of the covenant against incumbrances is supported by the entire weight of authority,” citing numerous decisions.

While it is true that a reason for the rule given by some judges is that the mortgagee might resort to an action on the bond of the mortgagor, yet that is not a controlling reason, the more satisfactory one being that before the covenantee can recover the whole amount of the incumbrance, he must pay it. This was the view taken in Stanard v. Eldridge, 16 Johns., 254, where the general doctrine was affirmed as in Delavergne v. Norris. Chief Justice Spencer speaking of that case said: “ We there held that in a suit upon a covenant against incumbrances, unless the covenantee had extinguished them, as he well might, for his own security, and if they were still outstanding, the damages were but nominal; for that there ought not to be a recovery of the amount of an incumbrance on a contingency, when the covenantee might perhaps never be disturbed by it. It is supposed that this principle is not applicable here, for it is stated in the case that no bond was given ; still the mortgagor might be sued in the covenant to pay the money, which is imported in every mortgage. We ought not to refine on this salutary principle, that before there can be a recovery on a covenant against incumbrances, the covenantor must pay and satisfy them.”

In the present case the incumbrance is an annual charge in favor of a widow and a principal sum payable after her death to the heirs. The latter may not become due for many years and the plaintiff may never be called upon to pay it. It is true the land is liable for it, but so also is the defendant Brodbeck, who assumed to pay it, and therefore became personally liable for it. The plaintiff could have protected himself bv withholding a sufficient amount of the purchase money, but lie did not choose to do so, and was satisfied with Brodbeck’s personal liability.

It does not appear that the plaintiff ever called upon Brodbeck to remove the incumbrance and therefore he would not be within the doctrine discussed, but not decided by Mr. Justice Duncan in Funk v. Voneida. Whether he can still do so and thereby entitle himself to present relief in some form, is a question which is not before us and which therefore we do not decide. But for the purposes of the present action we prefer to adhere to the law as we find it, and therefore

The judgment is affirmed.