Withers v. Bank of Commerce & Trust Co.

Smith, C. J. delivered the opinion of the court. This cause, or rather one feature thereof, was passed upon by this court once before, and will be found reported under the name of Robley v. Withers, 95 Miss. — 701 — 318, 51 South. 719. The facts material to the present controversy may be stated as follows: On January 15,1900, Austin Miller sold to W. Q. Bobley a plantation situated in Tunica county for the recited consideration of thirty-two thousand seven hundred dollars, of which two thousand seven hundred dollars was paid in cash, and Bobley gave to Miller six notes, of five thousand dollars each, maturing in one, two, three, four, five, and six years, respectively, with interest at six per cent, per annum, payable annually,'secured by deed of trust upon the property. These notes and the deed of trust were assigned by Miller to the Memphis Trust Company, now known as Bank of Commerce & Trust Company, as security for a large debt that he owed that concern. After the death of Bobley the Memphis Trust Company took possession of the plantation as mortgagee and rented it to the cross-complainant, Sterling A. Withers, for the year 1901, at a rental of two thousand six hundred and fifty dollars. On the 4th of December, 1901, the deed of trust executed by Bobley to Miller was foreclosed by the Memphis Trust Company, and it became the purchaser of the plantation therein conveyed at the trustee’s sale. On the 10th of December it sold this property to Withers by deed, with full covenants of warranty, at the price of twenty-seven thousand five hundred dollars, of which Withers paid in cash two thousand five hundred dollars, and gave to the Memphis Trust Company ten notes, for the sum of two thousand five hundred dollars each, payable in one, two, three, four, five, six, seven, eight, nine, and ten years respectively with interest at six per cent, per annum, payable annually. Withers went into possession of the land, and has so continued. The Bobley heirs exhibited the original bill in this cause, to which both appellant and appellee were parties defendant, assailing the validity of the trustee’s sale under the deed of trust given by Mr. Bobley, and — 702 — on appeal this court held that sale to be void. 95 Miss. 318, 51 South. 719. When the ease was remanded, Withers compromised, or bought in the title of the Bobley heirs, paying them therefor eight thousand dollars, and thereupon filed this cross-bill, praying for an accounting between himself and appellee as to the amount yet due by him on his purchase of the land, and seeking to have the eight thousand dollars paid by him to the Bobley heirs credited on his notes, and also to have credit for two hundred and fifty dollars paid as attorney’s fees and sixty-one .dollars and five cents paid by him as court costs in the present litigation; that is, court costs for which the Bobley heirs might have been liable because of their original bill herein. To this cross-bill a demurrer was interposed and sustained, and this appeal is to settle the principles of the case. It is well settled in this state, and, for that matter, seems to be in most of the states of the Union, following the rule laid down in the case of Staats v. Ten Eyck, 3 Caines (N. Y.), 111, 2 Am. Dec. 254, and Pitcher v. Livingston, 4 Johns. (N. Y.) 1, 4 Am. Dec. 229, from the supreme court of New York, that a grantor, upon the total breach of a covenant of warranty contained in a conveyance of land, is liable to the grantee only for the amount of the purchase money received by him, with interest thereon for so long a time as the grantee has been compelled to account to the true owner for rents and profits, together with costs of suit incurred in defending against the efforts of the true owner to recover possession of the land conveyed. Interest on the purchase money paid by the grantee and the mesne profits of the land while in his hands are considered by the law as the equivalents of each other, and where an accounting for mesne profits has not been required the interest cannot be recovered. Phipps v. Tarpley, 31 Miss. 433; Brooks v. Black, 68 Miss. 161, 8 South. 332, 11 L. R. A. 176, 24 Am. St. Rep. 259; White v. Presly, 54 Miss. 314; White v. Tucker, 52 — 703 — Miss. 145; Allen v. Miller, 99 Miss. 75, 54 South. 731; 2 Sutherland on Damages (3 Ed.), 605. It is also well settled that, where such a grantee has been compelled to purchase an outstanding title, he can recover from his grantor the money necessarily expended by him for that purpose; and appellee’s contention here is that this eight thousand dollars, paid by him to the Robleys, was for the purchase of an outstanding title, and therefore he is entitled to recover it from appellee, or rather to set it off against whatever amount he may still owe appellee for the land. The case here presented, however, is not an ordinary one of the purchase of an outstanding title. What appellee in fact purchased was simply an equity of redemption, the acquisition of which, it-is true, tended to perfect his title, but which he acquired, nevertheless, charged with the burden of the deed of trust to secure the payment to appellee of the Robley debt, the payment of which he is relieved of only by reason of the fact that it (the deed of trust) is held by his own grantor, by whom' his title had been warranted. And, moreover, it is clear from the allegations of the cross-bill that this eight thousand dollars, as the price to be paid by appellant to the Robley heirs for their interest in this land, was arrived at by taking the amount which he would have had to pay them as rent for the time during which he had been in possession thereof, and deducting therefrom the interest which they would have had to pay appellee on the debt due by them, which interest exceeded the amount of interest due by appellant to appellee on his own debt. The effect, therefore, of what occurred between appellant and the Robleys was simply this: That they abandoned all claim upon the land upon the payment to them of the rent due thereon by appellant, less the interest that they would have had to pay on the debt due by them to appellee. Had appellant not purchased this equity of redemption, leaving it to be asserted by the — 704 — Robleys, they would have paid this interest along with the remainder of their debt to appellee, and had they then called upon appellant for an accounting for rent he could, in that event, recover from appellee the interest he had paid in, and no more, losing, just as he must lose here, the excess of the rent he has paid over the interest. From this it appears that the real controversy here, in the last analysis, is over the question of liability for rent. This being true, appellant is not entitled to charge this eight thousand dollars against appellee under the rule hereinbefore set out, for the reason that he has received the benefit of the interest paid by him to appellee in the settlement had by him with the Robley heirs. In order for’us to uphold appellant’s contention, it will be necessary for us to overrule the cases herebefore cited and hold that a covenant of warranty contained in a conveyance of land constitutes a promise on the part of the grantor to indemnify the grantee for any and all damages he may suffer by reason of the breach thereof, and this we cannot do. It may be that the rule herein applied will work injustice in some cases, but any rule the courts might adopt would have that effect, for the law is not an exact science, and many of its rules are imperfect, and do not work out exact justice in all cases. Experience has demonstrated, however, that the rule herein applied, the reasons for which have been clearly stated by Chancellor Kent in the cases of Staats v. Ten Eyck, 3 Caines (N. Y.), 111, 2 Am. Dec. 254, and Pitches v. Livingston, 4 Johns. (N. Y.) 1, 4 Am. Dec. 229, will result in administering exact justice in a great majority of cases, and this is all that the law can or attempts to do. Human wisdom falls so far short of perfection that it could not be otherwise, and, moreover, a general rule for administering justice, once adopted and not demonstrated to be clearly wrong, should in no case thereafter be bent or broken because of seeming hardships resulting from its application to the particular case, or be — 705 — cause of the disapproval thereof by the judge called upon in the particular case to administer it. In the language of the brief of counsel for appellee: “It is difficult to be wiser than the settled law. If it were possible in any human tribunal to reach exact justice in each and every case without regard to settled, and and it may be arbitrary, rules, the perfection of human justice would be reached. But the effort to reach what seems to be just and equitable results, by disregarding well-settled principles, is sure to result in the doing of injustice in by far the greater number of cases. Whatever may be the wisdom of particular judges, mankind do not make their transactions with any knowledge whatever of the way in which the minds of particular judges act. They accept settled rules as fixing their rights and liabilities, and deal with reference to them.” Should a grantee in a deed desire an enlarged covenant of warranty, it may, when the deed is executed, be easily so worded as to have the desired effect. Under the rule announced in the case of Brooks v. Black, 68 Miss. 161, 8 South. 332, 11 L. R. A. 176, 24 Am. St. Rep. 259, appellee cannot recover the two hundred and fifty dollars attorney’s fees paid by him, and, in so far as the item of court costs is concerned, that is a matter which can be adjusted by the court without a cross-bill on final hearing. Affirmed and remanded.