King v. Administratrix of Gilson

Hr. Justice Walker delivered the opinion of the Court: The first question which we propose to consider is, whether the title acquired by appellant of Easly, by deed of conveyance, dated January the 29th, 1861, inured to Heilman as a subsequent grantee. It is urged, that it did not, for two reasons; first, because the deed from Gilson to Thorne contains no «covenant of general warranty; and secondly, because the deed from Easly to appellant, was delivered after the commencement of this suit. In the case of D’ Wolf v. Haydon, 24 Ill. 525, it was held, that the words, “ grant, bargain, sell,” contained in a deed, being a statutory covenant, is sufficient to enable a subsequently acquired title to inure to the grantee. This deed to Thorne contained these words, and it was, therefore, as effectual to pass the subsequently acquired title to Heilman, the last grantee, as though it had contained full covenants. The rule has been announced with uniformity, and in general terms, that a person who, having sold and conveyed real estate by a deed containing covenants of general Warranty, and subsequently acquires the title, that it inures to the benefit of his grantee. Whether this effect is produced by way of estoppel, by remitter, or by operation of the statute of uses, has been a matter of much discussion, but whether it is by one or another of these modes, can matter but little, as the effect produced by ''either is in all respects the same. The doctrine as it obtains in Great Britain seems to be, that if a person sell land with warranty, and the title fails, but the grantor subsequently acquires the land under a different title, there is an equity arising out of the contract, which annexes it to the new title. This also appears to be the doctrine of a portion of the States of the Union. In others, it is held, that an after acquired title passes by way of estoppel to the grantee. Baxter v. Bradbury, 20 Maine, 260. In Pennsylvania the same rule obtains, with slight modifications. Brown v. McCormick, 6 Watts, 60; Shaw v. Gilbert, 7 Barr. 111. In the case of Root v. Crock, 7 Pa. State Reps. 380, the court went further, in holding that the title inures -to the grantee without reference to a covenant of warranty. In the Kentucky Court of Appeals, in the case of Cotton v. Ward, 3 Mon. 304, the rule that the subsequently acquired title inured to the grantee under a deed containing covenants of warranty, was fully recognized. And the Supreme Oourt of Missouri, in the case of Reese v. Smith, 12 Mo. 344, announced the same rule, and see the following cases decided by this court: Rigg v. Cook, 4 Gilm. 350; Willis v. Watson, 4 Scam. 65; Jones v. King, 25 Ill. 388. Upon a careful review of all the authorities we are clearly of the opinion, that the title, subsequently acquired, did inure to Heilman. It was, however, insisted on the trial, that the title could not inure, unless there was a seizin in fact. We have not found that the rule is thus limited. On the contrary, in the case of Cornell v. Jackson, 3 Cush. 506, it was held that the title inured to the benefit of the plaintiff, when he was not in possession at the time the suit was brought, or the judgment recovered. We are unable to perceive how the premises being unoccupied, could* prevent the title from passing, any more than if the conveyance had been directly to the appellee. The law has held that the title inures, and has not made it to depend upon the condition of the premises. It was also urged, that such a rule, in case the land were vacant, might operate with great injustice, if the grantor should execute a conveyance to a different person, who might get it first recorded. This is true of a large portion of ordinary conveyances, and still the title passes to the grantee. It is not the recording of the deed that passes the title, but it only secures the title from being defeated by a subsequent sale of the land to an innocent purchaser. If the deed were withheld from the person in whom the title was vested, he could, no doubt, recover it by an action of replevin or detinue. Or if it should be lost or destroyed, a court of equity would relieve against its loss by compelling the execution of another deed. So that in any event, the party holding the title would have the means of availing himself of the evidence of his title. In this case, when Easly conveyed the land to appellant, the title vested in Heilman, for whose use this suit is instituted, and the title remains in him, whatever may have become of the deed. The next question presented for consideration is, whether the perfecting of the title is a bar to a recovery, or operates to mitigate the damages. The covenants of seizin and of good right to convey, are broken, if at all, when the deed is delivered. They are personal covenants, not running with the land, and are in presentí. Their breach depends upon no future contingency. They are, that the grantor is then seized, and has good right.to convey. If he is not well seized, or if he has not the power to convey, when the deed is delivered, an action at once accrues, and a recovery may be had. In this case it is not pretended that appellant was seized in fee when he conveyed to Gilson. He might have recovered on these covenants, in vhis lifetime, and the same right survived to his representatives after his death. Had a suit been instituted by him, and a recovery had before appellant procured the deed from Easly, the measure of damages would have been the -purchase-money, with interest. In such a case the grantee does not obtain what he purchased. But it seems to be a rule of general application, that in all actions on contract, sounding in damages, and of this character is covenant, the plaintiff is entitled to recover damages only to the extent of the injury sustained. If circumstances exist-which mitigate the injury, they must be considered in measuring the damages. Leland v. Stone, 10 Mass. 459; Baxter v. Bradbury, 20 Maine, 260. In the latter of these cases, it appeared that the defendant, after suit was instituted upon the covenant, acquired the title, and it was held, that the recovery could only be for nominal damages. And the cases of Cotton v. Ward, 3 Mon. 304; Reese v. Smith, 12 Mo. 344, and Cornell v. Jackson, 3 Cush. 506, fully sustain this doctrine. The exception to the general rule, that the plaintiff is entitled to recover all the damages he has apparently sustained at the gommencement of the suit, seems to be based upon the fact, that when the covenant is taken, the covenantee pays his money with the design of acquiring title to the premises, and not to make a loan, and when he has obtained what he purchased, he has sustained no injury. Technically, there has been a breach of the covenant, for which the law gives a right of recovery, but having the title for which he contracted, he can only recover nominal damages. In the case of Morrison v. Underwood, 20 N. H. 369, it was held that if the plaintiff 'was in possession, it might operate to mitigate the damages. And it is for the obvious reason, that the party may never be disturbed in the enjoyment of the property. And if so, his damages would only he nominal. The law would not permit him to hold the property, and recover hack the purchase-money. There may be a great variety of circumstances which would mitigate the damages in an action of covenant. But we have no doubt, that by acquiring the title, which inures to the benefit of the grantee, he cannot recover anything beyond nominal damages. He has sustained no substantial injury, and, consequently, has no right to compensation. y/ By the ancient covenant of warranty, on eviction of the grantee, the grantor was bound to yield other" lands of equal value of those from which there had been an eviction by paramount title. Coke Litt. 365. Whilst this mode of making compensation for the breach of the covenant has, from the more commercial condition of the times, gone into disuse, it has left its influence upon the recovery. Whilst the grantor i cannot satisfy the breach of his covenants of seizin with other lands, he may substantially discharge the breach by acquiring the title at any time before the damages are assessed. In all cases of covenants of general warranty, any title subsequently acquired by the grantor is held to have been acquired to strengthen the title of the grantee, and to prevent its failure, and that it inures to the benefit of the grantee. In any view of the case, we are of the opinion that when the title inured .^.JtoHellman’s benefit, he could only recover nominal damages. The judgment of the court beltiw must, therefore, be reversed, and the cause remanded. Judgment reversed.