Coffman v. Huck

Scott, Judge, delivered the opinion of the court. 1. The respondents having taken no cross appeal, the propriety of so much of the decree as rescinds the sale of the land, the purchase money of which the mortgage was given to se [439] cure, cannot now be enquired into. The sale being rescinded, the mortgage was at an end, as its entire consideration had failed. There was no longer any debt secured by it, consequently it became of no effect. The original contract having been destroyed, the mortgage, as an incident, fell with it. The mortgage falling, there was no power in the court to hold the land mortgaged subject to any claims the plaintiffs might have, arising from a rescisión of the contract. Consequently, the decree of the court, subjecting a portion of the mortgaged premises to sale for any damages resulting from the rescisión of the contract was erroneous. The defendant in an execution has a right to select what land seized under it shall first be sold, and it is clearly erroneous for a court to take away that election from him, and to condemn a particular tract of land to be sold. R. O. 481. The sale having been rescinded, and that portion of the judgment not having been appealed from, the inquiry will be, what compensation the plaintiffs are entitled to, for the use and occupation of the premises by the defendant under his purchase. 2. As to the improvements made upon that portion of the land conveyed to the defendant,' the title to which has failed, we can find nothing in the record which should subject the plaintiffs to a liability for their value. The evidence entirely fails to establish any bad faith on their part. Where there is no bad faith, it is clear that the purchase money, with interest, is the measure of damages in an action for a breach of covenant for title. Sedgwick, 207-8-9. 3. We do not hesitate to express our dissatisfaction with the mode adopted, in order to ascertain the value of the rents and profits of the premises, as against the defendant. The sale was rescinded on the ground of mistake — a mistake into which the defendant was led by the plaintiffs. When the result of the calculation of the value of the rents is contemplated, the error is apparent. The contract was made in February, 1846 ; the suit was commenced in October, 1851; the decree rendered in May, 1853, rescinding the contract, and the rents are adjudged [440] to be $3,666. The purchase money was $5000. Thus, in less time than, eight years, a purchaser, taking possession under a belief that he was the owner, induced by the mistake of the plaintiffs, is held accountable for an amount equal to nearly three-fourths of the purchase money, by way of rent. One who enters as a purchaser on lands is influenced by motives very different from those which actuate a tenant taking a lease at a certain rent, and he should not be chargeable as such when he loses his purchase, without his fault. As not the least blame attached to the defendants’ conduct, and as there was no expectation of being charged as a tenant, he should be liable only for the profits he made on that portion of the land which really belonged to the plaintiffs. So far as he was benefitted by the occupation, he is liable, and on no principle of law or justice should he be held to a more extended accountability. He should be allowed for all improvements made upon the land, and it should not be lost sight of that here the claim for improvements is made by way of recoupment against a claim for rents. Under such circumstances, justice requires that such claim should be regarded with liberality. It was no fault of the defendant that he was there. So soon as the mistake was discovered, he offered to reconvey the land and rescind the contract, and that was prevented by the plaintiffs. The weight of the English-and American authority is, that when one takes possession under a contract to convey, he does not thereby create the relation of landlord and tenant between the vendor and himself, and that an action for use and occupation will not lie against him, until there has been an abandonment of the contract. But this principle does not apply here. This is a much stronger case. Here the land was actually conveyed. The defendant can only be held liable to the amount that he has been benefitted by the occupation, as he has. not paid the purchase money, and not for what a single witness may say was the annual value of the premises. By such a process, the plaintiffs, in a short time, taking advantage of their own refusal to rescind a contract, which the judgment in this case as [441] sumes ought to have been rescinded, would have received the price of- the land, and then have taken the land itself. We have said, that the defendant, Huck, would have no claim to damages for the improvements erected upon the land not belonging to the plaintiffs, in an action for a breach of the warranty of title; but we are of opinion that, in determining the question, how far the occupation of Huck of the premises in controversy has been beneficial, the fact may be considered that outlays for improvements were made on a portion of the land to which the plaintiffs had no title, and from a consideration of this, together with the other circumstances, it will be determined how far Huck was benefitted by his occupation of the premises, the contract for the sale of which has been rescinded. The judgment is reversed, and the cause remanded, the other judges concurring.