Bradshaw v. Crosby

Knowlton, J. A difficulty in this case grows out of the obscurity and indefiniteness of the agreed statement of' facts; but the amount in dispute is small, and neither party would profit by a discharge of the statement and a further hearing. The covenant against incumbrances was broken by the existence of two mortgages on the estate conveyed, and on that account a right to sue and recover nominal damages immediately accrued to the plaintiff. For a breach of a covenant against incumbrances in a deed of real estate, if the incumbrance is a mortgage or lien which can be discharged by the payment of money, and which does not interfere with the enjoyment of the property by the grantee, the law gives only nominal damages if nothing has been done towards the removal of the incumbrance. Prescott v. Trueman, 4 Mass. 627. Clark v. Swift, 3 Met. 390. Harlow v. Thomas, 15 Pick. 66. Tufts v. Adams, 8 Pick. 547. [239] Batehelder v. Sturgis, 3 Cush. 201. If the plaintiff has paid off the incumbrance at any time before , the,-trial, he- may recover •what he has fairly and reasonably paid for that purpose, not exceeding the value of the estate. Leffingwell v. Elliott, 10 Pick. 204. Johnson v. Collins, 116 Mass. 392. Smith v. Carney, 127 Mass. 179. Where the incumbrance is of a kind which affects the owner in the enjoyment of the estate, the measure of damages is a just compensation for the real injury resulting from it. Wetherbee v. Bennett, 2 Allen, 428. Bronson v. Coffin, 108 Mass. 175. Whether the plaintiff in this action can recover more than nominal damages depends upon the construction of the statement of facts. It is agreed that the defendant, and not the plaintiff, removed the incumbrances. It is also agreed that, while the incumbrances existed, “the plaintiff was put to actual expense in the sum of $73.82, as shown in his bill of particulars.” The burden of proof is on the plaintiff, and there is nothing but the bill of particulars itself to show what relation, if any, these items had to the incumbrances. The items for interest paid on the plaintiff’s own mortgage notes, and for legal expenses connected with the enforcement of his rights, are plainly too remote, and cannot be allowed. Harrington v. Murphy, 109 Mass. 299. Leffingwell v. Elliott, 10 Pick. 204. The charges for lost time, horse hire, cash paid Damon, and horse-car fares, when considered in connection with the statement that the defendant removed the incumbrances, do not appear to have been for expenses fairly and reasonably incurred in procuring the removal, and must be disallowed. We cannot understand, and there is nothing to inform us, how it was necessary to draft or record an assignment of a mortgage. We infer from-the language of the bill of paiticulars, and from the argument, that the two discharges of mortgages were to discharge the incumbrances on the record, and that these were procured and recorded at the expense of the plaintiff. It was reasonable that the mortgages should not only be paid, but discharged; and the plaintiff should be allowed for his payments for drafting and recording these discharges. The provisions of the Pub. Sts. c. 126, § 18, do not enlarge the rights of the plaintiff in the present case. That section [240] gives a right to recover to a “ grantee, his heirs, executor, administrator, successors or assigns, for all damages sustained in removing ” from the record what there appears to be an incumbrance upon an estate conveyed by a deed containing a covenant that it is free from incumbrances. In estimating damages under this section, the same principles are applicable as in cases at common law, where an incumbrance has been removed by a grantee who sues on his covenant. The plaintiff is entitled to recover one dollar and seventy cents, with interest from the date of the writ. Judgment accordingly.