Edwards v. . Meadows

BeogdeN, J. The judge charged the jury as follows: “I charge you, upon all the evidence, and the admissions of the plaintiffs, that you cannot answer the second issue more than $200.25 and interest. It is admitted that the naked lot was worth $1,000 when sold, and that at that time there was due on the plaintiff’s mortgage the sum of $1,093.90, and that two prior mortgages given by the plaintiffs were paid out of the proceeds of the sale, and that the cost of the sale and taxes paid amounted to $106.35 were added to the plaintiff’s mortgage, and upon these admissions the court charges you the plaintiffs cannot complain of damages for the amount paid out on account of the two prior mortgages given by them, and you cannot answer the second issue more than $200.25 and interest. The defendant contends that you ought to answer it nothing or some small amount. The measure of damages would be the difference in value of the lot with the house on it and the value of the lot with the house off it, but in no event could she recover more than enough to pay her mortgage. I charge you that if she had given a prior mortgage and afterwards gave a warranty deed, as is admitted, the amount ought to be taken out to pay the prior mortgage, could not be complained of as damages in this case. It is for you to say if she has sustained any damage and how much, bearing in mind the maximum is $200.25 and interest.” The exception to the foregoing instruction is sustained. The defendant was a wrongdoer or tort-feasor. The jury found that he had wrongfully and unlawfully removed from the mortgaged premises the dwelling-house which, at the time of removal, was worth $600. Nothing else appearing, the defendant was therefore liable to the plaintiffs for the sum *258 of $600, because tbe defendant, by bis wrongful act, bad impaired tbe plaintiff’s security by tbat amount. Of course tbe- plaintiffs cannot recover more than tbe amount due on tbe Eowden mortgage, amounting on tbe day of tbe sale to $1,093.90. Tbe plaintiffs bave received from tbe trustee a part of tbe proceeds of sale in tbe sum of $243.49, wbicb left a balance of $850.41 due plaintiffs on said mortgage. It is obvious tbat $600 does not pay an indebtedness of $850.41. Tbe defendant contends, however, tbat plaintiffs conveyed tbe property to Eowden by deed containing a covenant against encumbrances, and it further appearing tbat there were mortgages on tbe land at tbe time, securing an indebtedness of $500, there was a breach of said covenant by tbe plaintiffs, and hence tbe sum of $500 with interest and taxes and costs of sale must be credited on plaintiffs’ mortgage before resort can be bad to tbe defendant. If this could be done, then tbe parties agreed tbat tbe balance due plaintiffs was $200.25, and tbe judge so charged tbe jury. But this cannot be done. Tbe defendant was not a party to tbe deed from plaintiffs to Eowden, and therefore be bad no claim against tbe plaintiffs for any breach of any covenant in tbe deed. To adopt tbe theory of tbe defendant would in effect permit him to plead as a counterclaim to bis liability for bis unlawful act, tbe breach of covenant in a deed to wbicb be was not a party and by wbicb be was not injured, or caused to suffer loss. Upon tbe admissions of tbe parties and tbe findings of tbe jury upon tbe other determinative issues, tbe second issue is immaterial. Tbe plaintiffs are entitled to judgment for six hundred dollars and interest from 1 June, 1924, and costs. Modified and affirmed.