Thompson v. . Avery County

Winborne, J. The principal question is: Where the owner of a life estate only in certain land, against which there are existing judgment liens, has, pursuant to contract and in consideration of a certain purchase price, executed and delivered to another as grantee a deed conveying the fee in the land with covenants of seizin, of right to convey, *408 against encumbrances and of warranty, and later joins tbe owner of remainder in tbe execution and delivery of a like deed to tbe same grantee, describing tbe same land, with like covenants and for tbe same purchase price, is tbe grantor, remainderman, liable to grantee for breach of covenant against encumbrances for tbe amount expended by tbe grantee in discharging tbe judgment liens against tbe life estate? Tbe court below ruled that be is. In this ruling we think there is error. A judgment, directing tbe payment of money, upon being docketed, becomes “a lien on tbe real property in tbe county where tbe same is docketed of every person against whom any such judgment is rendered.” C. S., 614. Tbe lien extends to and embraces only such estate as tbe judgment debtor has at tbe time of tbe docketing thereof, or thereafter acquires while tbe judgment subsists. Bristol v. Hallyburton, 93 N. C., 384; Bruce v. Nicholson, 109 N. C., 202, 13 S. E., 790. A covenant against encumbrances is generally regarded as relating to things in existence at tbe time it is made. It is a personal covenant and does not run with tbe land. Hence, if a judgment lien exists, tbe covenant against encumbrances is broken immediately upon tbe delivery of tbe deed and a right of action for damages arises in favor of tbe cove-nantee. Cover v. McAden, 183 N. C., 641, 112 S. E., 817; Lockhart v. Parker, 189 N. C., 138, 126 S. E., 313. Applying these principles to tbe case in band, it is pertinent to bear in mind tbe facts that Nora Thompson was seized of a life estate only, and Ray E. Thompson was seized only of tbe remainder in and to the lands in question, and that tbe judgments were against Nora Thompson and not against Ray E. Thompson. Hence, tbe lien of tbe judgments extended only to tbe life estate of Nora Thompson, and not to tbe remainder. These judgments being docketed in Avery County at tbe time of tbe delivery of tbe deed from Nora Thompson to tbe Board of Education, tbe covenant therein against encumbrances was instantly broken, and a cause of action arose immediately against her and in favor of tbe Board of Education for damage for such breach. But a different situation exists in relation to tbe second deed: When tbe Board of Education accepted deed from Nora Thompson it became seized of her estate in tbe land. Therefore, as tbe title thereto was then vested in tbe Board of Education, no part of tbe life estate was conveyed by tbe second deed. Tbe inclusion of her name in it and tbe execution of it by her were mere matters of surplusage. "While not limited in expression to tbe conveyanse of tbe remainder,, of which Ray E. Thompson was seized, tbe second deed bad tbe effect of conveying only such remainder, which was unencumbered, and with respect to which tbe covenant against encumbrances is not broken. There is no reference in tbe deed to tbe encumbrances against tbe life *409 estate. This being the case, to assume 'that the parties intended the covenants to extend to an estate of which the covenantee was then seized is not appealing to reason. We, therefore, hold that the existence of the judgment against Nora Thompson at the time of the execution and delivery of the second deed does not constitute a breach of the covenants against encumbrance therein set forth. Consequently, defendants, as against Eay E. Thompson, may not successfully assert claim for any amount expended by them in removing or discharging the liens of said judgments. The general rule as to the measure of damages for breach of covenant against encumbrances, where the encumbrance has been removed or paid off by the covenantee, is the fair and reasonable amount paid out by the covenantee in removing or discharging the encumbrances, provided it does not exceed the purchase price paid by the covenantee for the land. 14 Am. Jurisprudence, 582, 599, and 602; Rawls on Covenants of Title, p. 275, ch. IX, secs. 192, 193. In accordance with this rule, defendants are entitled to recover of Nora Thompson the fair and reasonable amount paid out by'them in removing or discharging the liens of said judgments against her, which is admitted to be $782.65; provided, that amount does not exceed the purchase price paid, or agreed to be paid, to her for her life estate in the said lands. It is then necessary to determine what is the purchase price of the life estate of Nora Thompson, based on total purchase price of $1,400 for the fee. She would be entitled to the present cash value of her life estate in the purchase price, to be calculated and based upon the expectancy of her continued life from the age attained at the date of her deed, 16 November, 1936, in accordance with the provisions of the statutes — -O. S., 1790, and C. S., 1791, as amended by Public Laws 1927, ch. 215. Plaintiff Kay E. Thompson is entitled to the balance of the purchase price, that is, the difference between the total purchase price and the value of the life estate of Nora Thompson so calculated and deducted as of 16 November, 1936, with interest on such difference from that date. But Kay E. Thompson, having disclaimed any part of the $500 paid by defendants to Nora Thompson, is not entitled to recover of defendants as principal of purchase price more than $900. There being no finding of fact as to attained age of Nora Thompson on date of her deed, 16 November, 1936, the case will be remanded for the ascertainment of this fact, upon which judgment will be entered in accordance with this decision. Keversed.