Opinion
3 Div. 734.
September 12, 1933. Rehearing Denied October 3, 1933.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Action for breach of warranty in a deed by J. M. Steverson against Rosa Gassenheimer. Plaintiff, being dissatisfied with the judgment in his favor, appeals.
Affirmed.
Certiorari denied by Supreme Court in Steverson v. Gassenheimer (3 Div. 78) 150 So. 707.
Count 1 of the complaint is the common count on an account stated.
Count 2 claims damages in the sum of $1,500 "as damages for the breach of warranty in a deed executed and delivered by the defendant on the 2nd day of November, 1927, to plaintiff for the consideration of Four Hundred Fifty ($450.00) Dollars, conveying the following described property, to-wit: * * * said deed being in words and figures as follows. * * *"
The deed, set out in extenso in this count, contains the following: "And I do covenant with the said J. M. Steverson, his heirs and assigns, that I am lawfully seised in fee simple of the aforegranted premises; that they are free from all incumbrances; that I have a good right to sell and convey the same to said J. M. Steverson, his heirs and assigns, and that I will warrant and defend the said premises to said J. M. Steverson, his heirs and assigns, forever, against the lawful claims and demands of all persons."
It is averred that said deed was executed and delivered by defendant to plaintiff for the stated consideration delivered by plaintiff to defendant on delivery of the deed; that notwithstanding said deed contains a covenant of warranty on the part of defendant that the property was free from all incumbrances, said property was in fact at the time of execution and delivery of said deed by defendant to plaintiff, for the valuable consideration set out which plaintiff has paid before the filing of this suit, incumbered with a charge or lien for state and county taxes due for the year 1926, which were due and unpaid, for which said property so conveyed to plaintiff was sold, on or about June 2, 1927, by Chilton county and the state of Alabama to one O. O. Roper, who held at the time of said sale by defendant to plaintiff, a certificate of purchase for which said Roper, on or about October 8, 1929, received a tax deed from the state of Alabama.
The tax deed, set out in the count, recites that a decree was rendered by Chilton county probate court on May 2, 1927, for the sale of the land for state and county taxes due from "Sidney Gassenheimer, the owner of said land"; that on the "6th day of June, 1931," said lands were duly sold by the tax collector, at which sale O. O. Roper became the purchaser at and for said taxes, costs, and expenses, and received from said tax collector a certificate of purchase; that the time for redemption has elapsed, and that the certificate of purchase has been returned to the probate judge, whereupon the probate judge conveyed to Roper "all right, title and interest of Sidney Gassenheimer, owner as aforesaid," and of the state and county, in and to the land. This deed bears date June 8, 1929.
It is further averred that plaintiff has kept and performed all the covenants set out in said deed on his part to be performed; that said incumbrance in favor of Chilton county and the state of Alabama for 1926 state and county taxes, and the certificate of purchase at the sale of said property for taxes held by said Roper, were in favor of said state and county and said Roper, and by reason of said incumbrance defendant's covenant of warranty against incumbrances was breached by her at the time of the sale and delivery to plaintiff of said deed, as a consequence of which said breach defendant conveyed no title to plaintiff, and plaintiff was damaged in the sum sued for.
Count 3 differs from count 2 only in the respect that it is predicated upon a breach of the covenant of seisin.
It appears that the property was owned by S., or Selig, Gassenheimer, who had died prior to the transaction in question. Defendant, Rosa Gassenheimer, was his widow and sole heir under his will. Sidney Gassenheimer testified that he was the son of Rosa Gassenheimer; that he never owned the property and never assessed it for taxes in his name: that in the sale of the property to Steverson he acted as agent for his mother, and put Steverson in possession of the property by delivering to him the deed. It further appears that the sale of the land was agreed upon in November, 1926, at which time a deed, undated but acknowledged November 20, 1926, was executed and sent with draft attached dated November 20, 1926, to a bank in Birmingham, and that the draft was paid by plaintiff February 2, 1927, and the deed placed of record February 8, 1927. The deed set forth in the complaint, dated November 2, 1927, was, according to the evidence of both parties, executed for the purpose of correcting a mistake in the description of the land contained in the former deed.
Plaintiff testified that he was never put in possession of the land by Mrs. Gassenheimer or any agent acting for her; that he never took possession, but his representative went there after the deed had been given to him, and found Roper, who had bought in the property, in possession; that "I never did go in possession of the land, but my representative went down there. As to whether they went down there after I got the first and second deed from Mrs. Gassenheimer, no; I don't think so until we found — that — he didn't go any more — didn't go at all until we found that we wanted — in fact, I had the man down there looking after this timber, and he learned that this man was cutting the timber. He went to see about it, and I protested then to Mr. Sidney and he said he had a Mr. — a lawyer in Clanton handling it and would straighten it out. Nobody had prevented me from going on the land at any time, or ordered me off the land. Nobody had ever filed a lawsuit against me with reference to this land, and nobody has ever evicted me under any title. I don't know the amount of taxes for which the land was sold." He further testified that he did not remember whether he had before him, at the time of receipt of the second deed, an abstract of title showing taxes for the year 1926, in the amount of $3.99, to be due and unpaid; that he had a warranty deed and "naturally took it for granted" that the title was clear and made no further inquiry; that he "made an attempt to redeem the property from the taxes. I don't remember the date. I could not tell you the month or year. After we discovered that the man was on the property we did everything we could. We did not offer him anything for his outstanding title, and did not attempt to make any trade with him at all. I have paid out nothing to the man that had the tax deed on account of his title."
Plaintiff's evidence tended to show that he had never been reimbursed for the amount paid by him to defendant for the land; that it was wild land, and he bought it for the timber on it and that the timber had been cut off or destroyed. Defendant's evidence tended to show that neither she nor her agent knew the purpose for which the land was bought by plaintiff, and that the land was, in part at least, farm land and had long been rented to tenants for farming purposes.
J. Q. Smith, of Birmingham, for appellant.
Under count 2 and the undisputed evidence plaintiff was entitled to damages in the amount of the purchase price of the land, with interest from the date of the deed. Plaintiff never received possession by reason of an outstanding paramount title. The land was wild land, capable of producing no rent, was bought for the timber thereon, and the timber had been removed by the holder of the tax title. Anderson v. Knox, 20 Ala. 156; Kingsbury v. Milner, 69 Ala. 502; Clark v. Zeigler, 79 Ala. 346; Bibb v. Freeman, 59 Ala. 612; Prestwood v. Carlton, 162 Ala. 327, 50 So. 254; 15 C. J. 1328. A covenant of seisin in a warranty deed of vacant and unoccupied land is broken by the recording of a tax deed issued to a third person on a tax sale certificate outstanding when the deed was executed; the recording of the tax deed vesting the grantee with constructive possession. The measure of damages under the third count is the consideration paid for the land, with interest. Bibb v. Freeman, supra; Kingsbury v. Milner, supra; Clark v. Zeigler, supra; Daggett v. Reas, 79 Wis. 60, 48 N.W. 127; Mecklem v. Blake, 22 Wis. 495, 99 Am. Dec. 68; Messer v. Oestreich, 52 Wis. 684, 10 N.W. 6.
Rushton, Crenshaw Rushton, of Montgomery, for appellee.
Where the breach of warranty consists of a mere incumbrance, as a mortgage or other lien which may be removed by the payment of money, the measure of damages is the amount necessary to remove such incumbrance. 15 C. J. 1319, 1323, note 21; Anderson v. Knox, 20 Ala. 156; Copeland v. McAdory, 100 Ala. 553, 13 So. 545; Crickenberger v. Clay, 215 Ala. 67, 109 So. 363; Wilder v. Tatum, 15 Ala. App. 474, 73 So. 833.
This action was for breach of warranty, brought by appellant against appellee as evidenced by the complaint appearing in the record. The complaint consisted of counts 1, 2, and 3, to which appellee interposed the plea of general issue. In considering this case on appeal, count 1 may be disregarded as no points of decision as to said count are presented; nor was there any evidence to sustain this count.
The cause was tried by the court without a jury and judgment rendered for plaintiff (appellant). Insisting that the measure of damages was improperly and erroneously ascertained by the court, plaintiff appealed from the judgment rendered in his favor.
This is the only issue involved upon this appeal, and the respective insistences are based upon this point only.
Appellant insists under count 2 of the complaint, and the undisputed evidence, the damages should have been the amount of the purchase price of the property with interest from date of the deed. He also insists that under count 3, wherein he sought to recover on a broken covenant of seizin, he was entitled to recover like damages.
Appellee insists, and the court below so held, that there could be no recovery under count 3 under the evidence, and that upon the whole case plaintiff was entitled to recover only under count 2 of the complaint, and that such recovery of damages be limited to the amount necessary to pay and remove the incumbrance complained of which in this case consisted of unpaid taxes in the sum of $3.99, with interest thereon.
After due consideration we are of the opinion that no error prevailed in the rendition of the judgment complained of. The controlling point of decision here has been decided by this court, in line with the foregoing, in the case of Wilder v. Tatum, 15 Ala. App. 474, 73 So. 833, 834, in which case the suit was for breach of warranty in the conveyance of a telephone system, "free from encumbrance," wherein the court held: "If there was a breach of warranty, the measure of damages was the value of that which was lost at the time of its loss. * * * If the warranty was breached in the making, then the value at that time." See, also, the case of Copeland v. McAdory, 100 Ala. 553, 13 So. 545, by Chief Justice Stone, a direct authority to sustain the action of the lower court, made the basis of the assignments of error here.
No error appearing in the matters complained of, the judgment appealed from will stand affirmed.
Affirmed.