Opinion
January 8, 1906.
Nash Rockwood, for the appellant.
Fred Linus Carroll, for the respondent.
Where the title to a divided part of real property conveyed with covenants of warranty and quiet enjoyment fails and the grantee is evicted therefrom, the covenantor is liable on the covenants of warranty and quiet enjoyment to the extent only of that proportion of the whole purchase price that the value of the part to which the title has failed bears to the value of all the property sold. ( Sweet v. Howell, 96 App. Div. 45.) The covenantor on the failure of the title of a divided part of the premises sold cannot as matter of right demand the reconveyance of the real property on tendering back the amount paid therefor. The payment for said lots was $1,100 and interest thereon from a time prior thereto, when the contract for the conveyance of said lots was first made, making the total payment $1,183.30, while the offer of the defendant to repay to the plaintiff the purchase price of said lots was limited to $1,100, without including therein the interest added thereto from a time prior to the conveyance by him or interest thereon subsequent to the conveyance. The offer was insufficient, even if the plaintiff was willing to reconvey the lands so as to leave each of the parties to the conveyance in the same position that he was in before the sale; but the plaintiff may have preferred to keep the lots other than lot 109, and if the failure of title did not apply to all of said lots, he had a right to retain the lots to which title was found to be good and ask the defendant to repay him under the covenant of warranty and quiet enjoyment that part of the purchase price applicable to lot 109 as stated. No bad faith is shown in the conduct of the action by said Rhodes to recover her dower or in the sale pursuant to the interlocutory judgment in that action; and in the absence of bad faith the defendant is bound by the proceedings and judgment in that action so far as he had notice thereof by the complaint, a copy of which was served upon him by the plaintiff in this action. It was necessary in the action for dower to determine to what extent the plaintiff therein was entitled to dower in the property, if at all, and the plaintiff in this action was justified in defending said action and in submitting to the court every question relating to the allegations of her complaint, particularly in view of the fact that the defendant's attorney herein had served upon the plaintiff a notice saying, among other things, that the defendant felt "compelled to say that he will be reluctantly compelled to defend himself against any action you may bring against him."
Plaintiff could not have settled with Rhodes before judgment in her action without being compelled to establish at his peril the necessity therefor in any action that he might bring against the defendant upon the covenants in said deed. After the notice served by plaintiff on the defendant to defend the Rhodes action, it was as much the duty of the defendant as of the plaintiff to take advantage of the offer made by her to accept a gross sum in payment of her dower and have the same ascertained and paid in advance of the interlocutory judgment and the sale in that action. On the trial the plaintiff did not rely upon the finding in the Rhodes action that the defendant did not have title to lot 109 when he conveyed it to the plaintiff, but he gave other evidence from which the court could and did find that the State of New York had paramount legal title thereto and possession thereof. The plaintiff having been evicted from said lot 70, the east half of lot 71, and lot 108, and the State of New York being in possession of lot 109 under paramount title to that of the plaintiff, the judgment against the defendant for the purchase price paid by him for said lots, with interest and certain costs in the action for dower, must be affirmed unless some error was committed on the trial.
Defendant claims that it was error for the court to allow testimony as to the value of lot 109 and that the testimony should have been confined to questions relating to the proportion which the value of that lot bears to the value of all the lots conveyed. Defendant's objections to the questions relating to the value of such lots were so general that we do not think the trial court was fairly apprised of the defendant's claim as to such evidence. As we have seen, judgment was rendered for the full amount of the purchase price of all the lots less the fourteen dollars and nine cents; consequently the evidence relating to the value of lot 109 did not affect the conclusions of the court except in the computation of interest. The judgment herein should not be reversed by reason of the rulings relating to such evidence.
The defendant insists that McCuen in purchasing the lots at the sale in the Rhodes action acted for the plaintiff and that the plaintiff is the equitable owner thereof. The action was tried before the court without a jury and it was found against the defendant's contention, and we do not think that the findings of the trial court relating thereto are against the weight of evidence or that there are any errors in the admission or rejection of testimony relating to plaintiff's alleged equitable ownership in said lots of sufficient importance to reverse the judgment.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.