Devine v. Lewis

Vanderburgh, J. The plaintiff alleges that on or about the 2d ■day of August, 1880, plaintiff agreed to purchase lot 10, in block 129, in the city of Minneapolis, agreeing to pay therefor the sum of $1,500, on or before five years, with interest according to the terms of her promissory note of the same date, and to pay the taxes thereon, and entered into possession under the contract; that she paid to the defendants several instalments of interest, and afterwards, on the 7th •day of October, 1882, she paid the purchase price in full, and received of the defendant Kelley (who had acquired the interest of the defendant Lewis) a deed, with warranty and full covenants, duly executed and delivered by him, of the same lot, in fulfilment of the contract. Plaintiff, however, acquired no title by the deed, and she was subsequently obliged to surrender possession to the owner of the paramount title upon suit brought by him. The question here presented is whether the plaintiff is entitled to recover interest on the purchase price from the date of the sale evidenced by the contract, or from the date of the deed; the contention ■of the defendants being that the damages for the breach of the cove■nants of seizin and warranty in the deed were the price of the lot, and interest from the date of the deed, while the plaintiff insists that interest is to be included from the date of the sale. The latter is, we think, the proper measure of damages. For the purposes of this action, she is entitled to show the real nature of the transaction, and to recover the actual and entire sum paid, including interest, irrespective of the date of the deed or the recital of the consideration therein. . The defendants, however, claim that the inquiry should not be extended back of the execution of the deed to the executory agreement, on the ground that the rights of the parties are to be determined by the deed, and not by the agreement. But this rule does not apply to [26] the consideration. The deed is substituted for the contract, it i® true, but the substitution does not conclude further inquiry as to the consideration, since, while the deed is the only lawful evidence of the executed contract in respect to rights vested or relinquished, the receipt or acknowledgment therein, reciting the consideration, is open to explanation as much as an independent receipt, which may be explained or contradicted, because it is simply evidence of the fact of payment. Gully v. Grubbs, 1 J. J. Marsh. 387. To secure full indemnity under the rule of damages applicable in such cases, it is obvious that payments made under a prior contract must be included, with interest, and that neither the execution of the deed, nor any recitals therein touching the consideration, constitute any bar to inquiry as to the nature or amount of such payments, or the recovery thereof. Order affirmed. ,