Mischke v. Baughn

Day, J. i. "warrants': deed: measoovery. — The plaintiff does not claim damages from his immediate grantor, Treadway, but from Baughn, the grantor of Treadway. The petition alleges that Baughn conveyed.- the premises above set out to rienry Treadway, and that Treadway conveyed said prem [530] ises to the plaintiff, and the court so found. The exhibits attached to the petition, and made a part thereof, show that Baughn conveyed to 'Treadway eighteen feet and ten inches off the easterly side of lot 149, being the same width the full depth of said lot from Broadway to Pierce Street; and that Treadway conveyed to the plaintiff nineteen feet and five inches off of the easterly side of lot 149, and extending back eighty-one and one-third feet, or half the distance from Broadway to Pierce Street. So that, whilst the plaintiff, as shown by his petition, is the grantee of only one-half of the property conveyed by Baughn to Treadway, he has, by the judgment of 'the court, recovered the entire consideration paid Baughn, with interest at six per cent from the date of eviction. This is clearly erroneous. The plaintiff should recover of the nine hundred dollars only in proportion of value which the part of lot conveyed to him bears to the whole lot. Eor if the title to the balance of the lot fails it is clear that Treadway or his grantee should be indemnified; and it is equally clear that Baughn cannot be made ’liable to a greater extent than the consideration money and interest. Appellee insists, however,, that the burden is upon the defendant to establish the relative value of the part of the lot conveyed to plaintiff, and that, as no such proof was introduced, the court properly charged the defendant with the consideration received for the entire lot. This position is not correct. The plaintiff asks relief, and the burden of proof is upon him to establish all the facts showing that he is entitled to - relief, and to- what extent. The judgment is Reversed,