Holmes v. Seaman

Ames, C. For an expressed consideration of $6,000, tbe defendant, William T. Seaman, conveyed to the plaintiff Holmes an improved Omaha city lot, by a deed of general warranty subject to a mortgage lien for $2,500, which the grantee assumed and agreed to pay. In full payment of the pur [301] chase price, Holmes at the same time conveyed to Seaman 13 outlying lots, known as “Baker Addition” lots, subject to a mortgage lien on 9 of them to secure the personal obligation of Holmes, which Seaman, by a stipulation in the deed,- assumed and agreed to pay and which he after-wards did pay and cause to be satisfied and discharged. Holmes went immediately into possession of the city lot, but has never paid any part of the mortgage debt thereon, and some years subsequently he was evicted by a judicial sale of the premises under a prior incumbrance. This is an action for damages by Holmes against Seaman for a breach of the covenant for quiet enjoyment contained in the deed by the latter of the city lot. The other defendant is the wife of Seaman, who joined in the last mentioned deed for the sole purpose of releasing dower and who is not bound by its covenants. The answer admits the eviction and there is no issue in the pleadings, or conflict in the evidence, as to any of the foregoing facts. The sole controversy at the trial was with respect to the measure of the plaintiff’s damages. The defendant offered to prove the value of the city lot, for the purpose of showing that it was no greater than the amount of the incumbrance thereon, assumed by his grantee in the deed conveying it, but the plaintiff objected and his objection was sustained by the court on the ground that the true rule of damages is that announced by this court in Cheney v. Stranbe, 35 Neb. 521, namely, the purchase price and interest, there having been no costs or expenses incurred by the covenantee in resisting eviction. The defendant then undertook to show, and did show to the satisfaction of the jury, and, we think, by a preponderance of the evidence, that the value of the Baker addition lots was not greater than the mortgage debt and incumbrance on a part of them, which he assumed and agreed to pay, and- did pay, pursuant to his covenant in the deed by which he acquired them. Upon the issues and evidence thus presented the court submitted the case to the jury by a series of instructions, [302] to none of which the plaintiff took an exception, and a verdict was returned for nominal damages only, and from a judgment thereon this proceeding is prosecuted. In this court, the plaintiff contends that the defendant is not entitled to dispute the recital of consideration contained in his deed conveying the city lot, especially because the transaction was an exchange of property, and that in such ca,ses the parties are finally and conclusively bound by the estimate of values which they have, at the time of the trade, put upon their respective properties, or, alternatively it is said that the deed, by which the Baker addition lots were conveyed, recites a consideration of $1,650 which, after deducting the amount of the incumbrances thereon, assumed and paid by the defendant, leaves a clear balance of $3,500, which, with interest, the plaintiff is entitled to recover. In support of the first branch of this contention, the plaintiff cites no authority, and we understand him to have abandoned it in his reply or supplemental brief. In that document, he argues that although the real consideration in the defendant’s deed could have been inquired into under proper issues, such an inquiry is not proper in this case, because the ansAver denies that there was any consideration, which the recital estops the defendant to do, instead of pleading the real consideration Avhich Avould have been permissible. With respect to this matter, it must suffice .to say, that we do not so understand the pleading. Both the petition and answer set forth the transaction in great detail and are supplemented, in this respect, by the reply, so that the entire controversy was before the court for such disposition of it as the laAv required, in view of all the facts out of which it arose. In connection Avith this argument the plaintiff cites 2 Sutherlandj Damages (2d ed.), sec. 575: When there is an exchange of land, the rule of ascertaining the damages seems to be that the plaintiff is entitled to recover the vaLue of the lands he was to receive from the defendant. We are satisfied with this rule, and so, as we understand, would [303] have been the defendant, had the testimony he offered tending to prove snch value not been excluded by the plaintiff’s objection. The plaintiff can, of course, not now be heard to contend that the ruling of the court sustaining his objection was erroneous. In support of the second branch of his contention, namely, that the recital in the deed of the addition lots is conclusive, he cites the apparently somewhat inconsiderate decision of the supreme court of Iowa in Williamson v. Test, 24 Ia. 138. This decision is in conflict with the rule above quoted from 2 Sutherland, Damages, and, we think, with the great weight of authority and the better reason. Complaint is made because the Court excluded a printed price list of the Baker addition lots, by which the defendant offered them for sale after he had acquired them, but the defendant admitted on the witness stand that he -held the lots and offered them for sale at the time mentioned at prices identical with those named in the list, so that it does not appear that the plaintiff was prejudiced by the exclusion. The court taxed the plaintiff with his own costs because the recovery was witliin the jurisdiction of a justice of the peace. There was no issue in the pleadings or evidence drawing in question the title to lands, and the action was for damages for the breach of a personal covenant. Normal v. Zinsmaster, 57 Neb. 158; Hesser v. Johnson, 57 Neb. 155. We are unable to discover reversible error in the record, and recommend that the judgment be affirmed. Letton and Oldham, CC., concur. By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment be Affirmed. 2. Opinion Modified. .Paragraph four of the syllabus to our former opinion herein, ante, p. 300, overruled, and the opinion is modified to conform to the rule above stated.