McCord v. Massey

Mr. Justice Waterman delivered the opinion oe the Court. The principal question presented in this case is whether an inchoate right of dower is such an incumbrance upon or defect in the title of premises, that a party covenanting to convey good title by a good and sufficient warranty deed, is bound to remove the same or pay such damage as the covenantee has suffered by reason of such right of dower. In Scribner on Dower, Vol. 2, p. 4, it is stated that “ Where a party has contracted to convey lands with cove-, nants of general warranty, or against incumbrances, an existing right of dower, although inchoate, will constitute a good defense to a proceeding on the part of the vendor for a specific performance of the contract, unless the vendee has waived the right to object to the title. The rule is the same where the vendor institutes an action at law against the purchaser to recover damages for non-performance of the contract.” A contract to give a good and sufficient deed is a contract to give a good title free from incumbrance. Rawle on Cov. for Title, Sec. 32; Carpenter v. Bailey, 17 Wend. 244; Fletcher v. Button, 4 Comstk. 400; Pomeroy v. Drury, 14 Barb. 424; Brown v. Cannon, 5 Gil. 174; Morgan v. Smith, 11 Ill. 199; Thompson v. Shoemaker, 68 Ill. 256. An inchoate right of dower is an incumbrance. Bawle on Covenants for Title, Sec. 77; Shearer v. Ranger, 22 Pick. 447; Bigelow v. Hubbard, 97 Mass. 195; Fitts v. Hoitt, 17 N. H. 530; Jones v. Gardner, 10 Johnson 266; Ketchum et al. v. Evertson, 13 Johnson, 359; Beardslee v. Underhill, 37 N. J. Law, 310; Porter v. Noyes, 2 Greenl. 22; Carder v. Executors, 3 Zabriskie, 260; Greenwood Lyon, 10 Smedes & Marshall, 615; Parks v. Brook, 16 Ala. 529; Bitner v. Brough, 11 Pa. St. 127, 137. The covenantee can recover the damages sustained by him, on account of such incumbrance, not exceeding the consideration money and interest. Brooks v. Moody, 20 Pick. 474; Porter v. Bradley, 7 R. I. 538; Delavergne v. Morris, 7 Johnson, 359; Green v. Tallman, 20 N. Y. 191; Bitner v. Brough, supra; Prescott v, Trueman, 4 Mass. 628; Batchelder v. Sturgis et al., 3 Cush. 201; Harlow v. Thomas, 15 Pick. 66; Hatcher et ux. v. Archer, 5 Bush (Ky.) 561; Whistler v. Hicks, 5 Blackf. 100; Sedgwick on Dams., Sec. 979; Willets v. Burgess, 34 Ill. 494. If the covenantee has extinguished the incumbrance he can recover the amount which he has fairly and reasonably paid for this purpose, the burden of proof being upon him to show what the outstanding title or incumbrance was really worth, the mere fact of payment being, in general, no evidence of this. Rawle on Covenants for Title, Sec. 192; Harlow v. Thomas, 15 Pick. 66; Anderson v. Knox, 20 Ala. 156; Dickson v. Desire, 23 Mo. 167; Walker v. Deaner, 5 Mo. App. 139; Pote v. Mitchell, 23 Ark. 590; Sedgwick on Dams., Sec. 980; Guthrie v. Russell, 46 Ia. 269; Brandt v. Foster, 5 Ia., 287. It would seem to the writer of this opinion that the better rule would be that, where the covenantee has given notice to the covenantor to remove an incumbrance, and he, a reasonable time having passed, has failed to do so, if the covenantee then in good faith proceed to buy up the incumbrance, proof of such facts would constitute prima facie evidence that the amount so paid was reasonable, as to which see, Newell v. Sass, 43 Ill. App. 579; Kelroy v. Remer, 43 Conn. 129-138; Clapp v. Hardman, 25 Ill. App. 509-515; Coburn v. Litchfield, 132 Mass. 449; Hildreth v. Fitts, 53 Vt. 684-690; Hartshorn v. Cleveland, 19 Att. Rep. 974; Atchinson v. Steamboat, 14 Mo. 63-69. The majority of the court think otherwise, and I am not prepared to say that the authorities go to such extent. In Anderson v. Knox, supra, the plaintiff proved what he had paid to remove an incumbrance, and then offered to show that the sum paid was reasonable; to this offer the defendant’s objection was sustained; a verdict and judgment for the plaintiff, on the evidence admitted, was reversed by the Supreme Court, the court saying that unless proof was made that the amount paid was reasonable, a judgment therefor could not be sustained. The action of the Alabama court in allowing the defendant the benefit of an error he had caused, is opposed to the action of this court in Stearns v. Reidy, 33 Ill. App. 246; nevertheless, the decision is an authority for the position that proof that the amount paid was reasonable must be made. Ro sufficient evidence that the amount paid was reasonable having been given in the case alt bar, the judgment for the plaintiff for the amount of the purchase money notes is therefore affirmed.