Pillsbury v. Mitchell

By the Court, Cole, J. This action was brought by Mitchell . against Pillsbury, upon a covenant in a deed against incum-brances. The deed was given June 11, 1855, conveying portions of certain lots in the city of Racine. The breach complained of was a tax certificate against the premises for taxes levied by the city council for the year 1854. It appeared upon the trial that Mitchell had conveyed the premises to Hunt and Alverson, and in his deed had excepted the taxes of 1854 from his covenant against incumbrances. Mitchell produced also at the trial, the tax certificate upon the premises for 1854, issued to Isaac Harmon, and indorsed by him in blank. It further appeared, that this certificate had never been bought up by Mitchell, but by one or both of his grantees, Hunt and Alverson, and belonged to them at the time of trial. Pillsbury, by his counsel, asked the Circuit Court to charge the jury, that unless the plaintiff was the owner of the tax certificate, he had no right to recover in this action: that if the plaintiff had not bought in the incumbrance, but it was still outstanding, the rule of damages would be merely nominal. The court refused so to charge the jury, but charged that the plaintiff, or his vendee, might maintain the action in plaintiff’s name: that the covenant against in-cumbrances is broken, if incumbrances do in fact exist at the time of the conveyance : that the covenant is one which runs [21] witb tbe land, and authorizes tbe suit to be brought in tbe name of tbe immediate or more remote grantee: that but one action can be maintained against tbe grantor upon tbe same covenant: and that Hunt and Alverson, tbe assignees of Mitchell, were not to be confined to nominal damages, though tbe suit was in tbe name of Mitchell, if in fact tbe covenant was not released before'the sale of Mitchell to Hunt and Alverson, and they had purchased in tbe tax certificates before suit brought. This ruling and charge of tbe court were excepted to, and are assigned for error here. It was conceded upon tbe argument, that tbe Circuit Court erred in instructing tbe jury that tbe covenant that tbe premises were free from incumbrances was one running witb tbe land, instead of being a personal covenant, as it is (Clark vs. Swift, 3 Met. R. 390, and cases there cited); but it was insisted that Pillsbury was not prejudiced by tbe charge, since tbe action was brought by bis grantee, tbe person in whom tbe right of action really existed. Admitting this to be a sufficient answer to that objection to tbe charge, we still are of tbe opinion that tbe court erred in regard to tbe rule of damages. Tbe doctrine is well settled that in an action of covenant against incumbrances, if tbe plaintiff has extinguished tbe incumbrance, be is entitled to recover tbe amount paid for it; but if be has not bought it in, be is only entitled to recover nominal damages. Delavergne vs. Norris, 7 J. R. 358; Hall vs. Dean, 13 id. 105 ; De Forrest vs. Leete, 16 id. 122; Stannard vs. Eldridge, id. 254; Prescott vs. Trueman, 4 Mass. 627 ; Wyman vs. Ballard, 12 id. 304; 2 Greenl Evid. sec. 242; Rawle on Cov. for title, p. 155, cases in note 1. But it is said that this action is really for tbe benefit of Hunt and Alverson, and therefore a recovery should be bad for tbe amount of tbe incumbrances extinguished by them. It is not very obvious bow that can be permitted without overthrowing the rule just cited.- For it is to be observed that a breach of this covenant is a chose in action, not assignable at common law and it could not be assigned so as to enable Hunt and Alverson to maintain an action in their names. Clark vs. Swift. But Mitchell has not attempted to assign this chose in action. He has brought [22] tbe action,..and, there .is nothing before ns to show that the judgment will not enure to his benefit. Ought he to recover for outstanding .incumbrances for which he has paid nothing ? ; To permit this would not unfrequently be productive of great in-, justice ; enabling the plaintiff to recover compensation when he has received no actual injury. For another reason this ought not to b.e allowed. The extinguishment of an incumbrance-is said to be a material, traversable fact, which should be so set forth in the declaration that issue might be taken upon it. De Forrest vs. Leete, 16 J. R. 122 ; Frink vs. Vornidee, 11 S. & R. 109; Tufts vs. Adams, 8 Pick. 549 ; Morston vs. Hobbs, 2 Mass. 433. Certainly to permit Mitchell to recover when he has paid nothing and made no averment in his declaration of having removed the incumbrance, might operate as a great surprise upon the defendant.. The general rule should be adhered to in this case as to the measure .of damages; that the plaintiff not having extinguished the incumbrance is only entitled to. recover nominal damages. We do not deem it necessary to express any opinion upon the other points in the case. ■ The judgment of the Circuit Court is reversed with costs and a new trial ordered.