Opinion
12797
January 3, 1930.
Before SEASE, J., Spartanburg, September, 1928. Affirmed.
Action by John T. Smith against W.J. Tapp, as administrator of the estate of Berry Wilson, deceased. From the decree rendered, defendant appeals.
The master took testimony, and on November 18, 1926, filed the following report:
"This is an action for breach of warranty contained in a deed of defendant's intestate, Berry Wilson, which he executed to the plaintiff on December 5, 1907, recorded in Deed Book 4-M, page 340, R.M.C. office for Spartanburg County. The deed conveys two tracts, of 70 1/2 acres each, and contains the usual warranty clause. The title to one of the tracts was good. The other tract had been purchased by Berry Wilson from Sarah T. Smith and Vianna Rogers, by deed dated August 29, 1894, recorded in Deed Book LLL, at page 173. They, in turn, had acquired the property from their father, Sanford Smith, whose deed conveyed a fee conditional estate only. This deed is recorded in Deed Book CCC, at page 606.
"The sole consideration for the conveyance of the two tracts of land by Berry Wilson was the assumption by the plaintiff of a mortgage which Berry Wilson had executed to W.S. Caldwell, amounting to approximately $4,550, on December 5, 1907, when the deed to the plaintiff was executed. The plaintiff went into possession of both tracts of land immediately on delivery of the deed to him, and continued to enjoy full possession of both tracts until 1922, when the tract of 70 1/2 acres which had been acquired through Sarah Smith and Vianna Rogers was sold in a partition suit, entitled `W.S. Smith et al. v. Sallie Smith Pitman et al., Judgment Roll No. 17800, Clerk's Office for Spartanburg County.' Vianna Rogers died in 1901, without leaving heirs of the body. Sarah T. Smith, now Sarah Smith Pitman, is still living. This tract, when sold in 1922, brought $4,300.00. The plaintiff was a party to this suit as an heir at law of Sanford Smith, and it was adjudged that he owned 11/28 interest therein. In settlement of his interest he was allowed $1,000.00 by order of Judge Sease, December 13, 1922.
"The mortgage of Berry Wilson to W.S. Caldwell was dated August 24, 1906. It was originally for $4,227.94, payable five years after date, with interest from date until paid at 8 per cent. per annum, payable annually, and provided also for 10 per cent. attorney's fees. It covered Berry Wilson's home place of 133 acres, the 141 acres which he sold to the plaintiff, 18 acres adjoining, and a lot at Campobello containing one and a fraction acres. Berry Wilson was getting old, and was greatly worried on account of this mortgage. The plaintiff married a daughter of Berry Wilson, and knew his father-in-law's physical and financial condition.
"On January 10, 1908, the plaintiff paid $800.00 on the Caldwell mortgage. Nothing was paid in 1909 and 1910. In 1911, he paid $13.42 on February 20 and $300.00 on March 27. Other payments were made during succeeding years, but hardly more than sufficient to cover the interest. On July 22, 1921, the master reported, in Smith v. Pitman supra, that there was due on this mortgage the sum of $4,004.15, exclusive of attorney's commissions.
"In February, 1922, W.S. Caldwell brought suit for foreclosure of his mortgage, which ripened into judgment roll No. 18401, clerk's office, Spartanburg County. As a result of this suit, all of the remaining property described in this mortgage was finally forced to sale, including the home place, the 18-acre tract, and the lot at Campobello, besides the remaining 70 1/2-acre tract which had been conveyed to the plaintiff.
"Berry Wilson died a few years ago intestate. The defendant W.J. Tapp was appointed administrator of his estate. By his answer the administrator sets up the agreement of plaintiff to pay the $4,550.00 mortgage of Caldwell and the fact that this was the sole consideration for the conveyance of the two tracts of land to the plaintiff. It sets up, also, plaintiff's failure to perform his agreement and satisfy the Caldwell mortgage, and the consequent damage which finally came to the Berry Wilson estate in the loss of all of his property. He sets up, therefore, counterclaim for $4,500.00 against the plaintiff, which counterclaim the plaintiff denies in his reply.
"The case presents two main questions: (1) The breach of warranty, as alleged in the complaint; and (2) the breach of contract, as alleged in the answer.
"The testimony satisfies me that the two tracts of land, of 70 1/2 acres each, were practically of the same value. It follows, then, that plaintiff agreed to pay $2,250.00 for the tract in question on December 5, 1907. The testimony shows also that he enjoyed the full use and occupation until it was sold in 1922. At that time the Caldwell mortgage amounted to $4,563.08, including interest from July 22, 1921, the date of the master's report, and attorney's commission, as called for. The note was then in the hands of attorneys for collection, as clearly appears from the records, in judgment roll No. 17800. The plaintiff unquestionably acquired good title to all of the property during the life of Sarah Smith and Vianna Rogers. In fact, he was not ousted until December, 1922. Applying the rule in Cain v. Cain, 53 S.C. 350, 31 S.E., 278, 69 Am. St. Rep. 863, the $2,250.00 would be reduced to $1,125.00. Considering the 15 years in which he had undisturbed possession, which is practically one-half an average lifetime, the rule appears to be an equitable one for application herein.
"The measure of damages in actions upon covenant for breach of warranty is stated in Section 5306, Volume 3, of the Code of 1922, to be the amount of the purchase money with legal interest from the time of eviction. Adding to the $1,125.00 interest from February 4, 1922, to date, makes the sum of $1,499.22. Plaintiff's counsel cites the case of Aiken v. McDonald, 43 S.C. 29, 20 S.E., 796, 49 Am. St. Rep., 817, and the case of Hunt v. Nolen, 46 S.C. 356, 24 S.E. 310, and Id., 46 S.C. 551, 24 S.E., 543, in support of their contention that interest should be allowed upon the purchase price from the date of purchase. I cannot so interpret these cases. The case of Aiken v. McDonald holds that the statute in force at the time of the making of the contract applies. This is the law as set forth in Section 5306, cited above. It further holds that the same rules in case of a partial breach of warranty. On page 33 of 43 S.C. 20 S.E., 797, Chief Justice McIver uses the following language: `If, then, the rule requires that in case of a partial breach of the warranty by a failure of title to a portion of the thing conveyed there shall be an apportionment of the measure of damages fixed by the statute, based upon the relative values of that portion to which title fails and of that portion to which the title proves to be good,' etc. In Hawkins v. Wood (1901) 60 S.C. 526, 39 S.E., 911, the above case is cited with approval, `When the breach of the covenant of warranty is only partial, the measure of damages is the proportion of the purchase money which the land recovered bore to the whole tract, with interest from the time of eviction.'
"In the case of Hunt v. Nolen, the grantee never had posession of the portion of the land as to which it was adjudged that there had been a breach of warranty. Of necessity, then, interest had to be calculated from the date of the deed, which, in fact, under such circumstances, was regarded in law as the date of eviction.
"As to the breach of contract: Plaintiff's duty was to pay the Caldwell mortgage. This he never did. While he was 15 years in full possession of both tracts of land, his payments amounted to little more than the interest on the debt. Plaintiff's failure to pay the debt finally resulted in a sale of all of the property embraced in the mortgage.
"From the testimony of Dave Wilson, which was not denied by the plaintiff, on receipt of the deed from Berry Wilson, plaintiff was to borrow the money at once from a banker at Greer and discharge the Caldwell debt. Whether he was to pay the debts in this way, or in some other way, there is no dispute as to plaintiff's obligation to pay the Caldwell mortgage in full. In the master's report and also in the decree of foreclosure in the case of Caldwell v. Wilson et al., the Caldwell mortgage debt was adjudged to be $4,865.72 on November 9, 1922. Pursuant to this decree, the other 70 1/2-acre tract of John T. Smith was sold for $3,525.00, and the remaining property of Berry Wilson, namely, the 18-acre tract for $750.00, the lot at Campobello for $200.00, and the Berry Wilson home place for $7,500.00
"The answer does not set up any special damage. If special damage were claimed, it would be difficult to establish, for the reason that there was another mortgage or two on Berry Wilson's property in favor of D.D. Davenport. Doubtless the Davenport mortgages might have been carried, if the Caldwell mortgage had been paid by the plaintiff herein, but there is no testimony on this point.
"The true measure of damage, therefore, in this case, is the balance that was due on the Caldwell mortgage. Calculating interest on $4,865.72 from November 9, 1922, to December 4, 1922, when the property was sold, is $23.65, and adding this to the debt makes a total of $4,889.37. From this amount should be deducted $3,525.00, less such portion of the costs, disbursements, and commissions as were properly chargeable to this particular property under the decree of foreclosure. I find that this portion of such costs, etc., properly chargeable to the 70 1/2-acre tract, amounts to $94.42. Making the deduction leaves a balance of $1,458.79 on December 4, 1922. Adding interest at the legal rate upon this balance gives the true measure of damage herein for breach of contract as the sum of $1,863.83.
"I find, therefore, that the actual damages resulting to the estate of Berry Wilson on account of plaintiff's breach of contract exceed the claim of plaintiff by the sum of $364.61, for which I recommend that the defendant have judgment against the plaintiff."
In due time the case came on to be heard before Hon. T.S. Sease, who filed the following decree:
"This is a suit to recover damages for an alleged breach of warranty in usual form contained in a deed made to the plaintiff by Berry Wilson, defendant's intestate. The matter now comes before me on exceptions to the report of the master in equity, filed December 1, 1926, both plaintiff and defendant having excepted thereto.
"As the facts are somewhat complicated, I think it best to recite them here for the purpose of clarifying the conclusions reached. In 1907, defendant's intestate, Berry Wilson, conveyed to plaintiff two tracts of land of 70 1/2 acres each, the deed containing the usual general warranty clause. The consideration was the assumption by plaintiff of a mortgage to W.S. Caldwell for $4,500.00 covering these tracts. It is conceded that the two tracts were of equal value; that is, that the purchase price of each was $2,250.00.
"Title to one of the tracts proved defective, for the reason that Berry Wilson's grantors, Sarah T. Smith and Vianna Rogers, had only a fee conditional therein, they in turn having acquired the tract from Sanford Smith.
"Vianna Rogers having died without leaving heirs of her body, the heirs at law of Sanford Smith brought a suit in 1920 to partition the land, Sarah T. Smith (then Sallie Smith Pitman) and John T. Smith, the plaintiff herein, being made parties defendants. The suit was entitled `W.S. Smith et al. v. Sallie Smith Pitman et al.,' and is judgment roll No. 17800 in the office of the clerk of this Court. In that case the master found that John T. Smith was the owner of an undivided eleven twenty-eighths interest in the land, and that the holders of the title paramount were entitled to recover the remaining seventeen twenty-eights.
"Exceptions were filed to this report, and the land was sold pending their argument, and it brought $4,300. Later, on December 13, 1922, after argument, a decree was filed adjudicating that John T. Smith should receive $1,000 as his share of the $4,300. As plaintiff herein, he now bases on that decree a contention that he was awarded only ten forty-thirds of the fee, and was, therefore, evicted from the remaining thirty-three forty-thirds. However, I am not inclined so to construe the decree. The exceptions raised certain questions with reference to rents and improvements, and evidently this lump sum was allowed as covering all matters involved; i. e., Smith's title in the land plus his claim for improvements less the rent claims. The decree confirms the master's report in all other respects, and I construe it as confirming the master's finding that Smith held eleven twenty-eighths of the fee and that the remaining seventeen twenty-eighths was in the holders of the paramount title.
"The W.S. Caldwell mortgage having been given by Berry Wilson, it, too, suffered from Wilson's failure of title to the mortgaged premises. Consequently the only fund derived from the petition suit for application on this mortgage was the $1,000.00 belonging to John T. Smith. The master's receipt book in that case shows that the $1,000.00 was not paid to John T. Smith, but was paid to the holder of the Caldwell mortgage on December 27, 1922. On the same day the balance in full of the said mortgage was paid in the sum of $3,912.13 from the proceeds of a foreclosure thereof entitled Caldwell v. Wilson et al., judgment roll No. 18401 in the office of the clerk of this Court. In this foreclosure the other 70 1/2-acre tract originally deeded by Berry Wilson to John T. Smith was sold for the satisfaction of a mortgage debt, and it brought $3,525.00. Other lands belonging to Berry Wilson and covered by this and other mortgages were sold in this foreclosure; but it is apparent from the records that there was due on the Caldwell mortgage on December 27, 1922, the sum of $4,912.13, which was paid as follows:
From the amount awarded John T. Smith in the partition suit ................................... $1,000.00 From the sale of the other 70 1/2-acre tract ....... 3,525.00 From the sale of other lands of Berry Wilson ....... 387.13 --------- Total ........................................... $4,912.13 "When John T. Smith instituted this present suit to recover damages for breach of the warranty in his deed, the defendant set up as a counterclaim damages on account of plaintiff's breach of his contract to pay the Caldwell mortgage."It was necessary for the master to decide two main questions in this case: (1) To what extent was John T. Smith evicted by paramount title; and (2) to what extent was Berry Wilson damaged by Smith's breach of his contract to pay the Caldwell mortgage. The first constituted plaintiff's claim, and the second constituted the counterclaim. The exceptions to the master's report are on the ground that he erred in his conclusions on both of these matters.
"Having construed the record in the case of Smith v. Pitman, supra, as adjudicating that John T. Smith was evicted from seventeen twenty-eighths of the fee, I conclude that I am bound by that record in this proceeding. Under Section 5306, Volume 3, Code of 1922, the true measure of damages in such cases is made the amount of the purchase money at the time of alienation, with legal interest from the date of eviction. Having been evicted of seventeen twenty-eighths, it follows that the true measure of damages is seventeen twenty-eighths of the purchase money at the time of alienation, with legal interest from the time of eviction. Smith's damage, therefore, is seventeen twenty-eighths of $2,250.00, that is, $1,366.07, with interest from December 13, 1922, the date on which the order was filed in the partition suit.
"As to the counterclaim, it is apparent from the statement above that Berry Wilson's estate was required to pay the sum of $387.13 on December 27, 1922, on the Caldwell mortgage. Defendant is therefore entitled to offset that amount against plaintiff's claim as of that date. Consequently plaintiff should recover of defendant in this case the sum of $978.94, with interest from December 13, 1922.
"Now, therefore, on motion of J. Hertz Brown and John D. Lanford, plaintiff's attorneys, and after hearing arguments, it is ordered that the report of the master be and the same is hereby modified in accordance with the conclusions set out in this decree; ordered further that John T. Smith, the plaintiff, have judgment against W.J. Tapp, as administrator of the estate of Berry Wilson, deceased, in the sum of $1,372.88, which includes interest to September 13, 1928."
The following are the exceptions of W.J. Tapp, administrator, appellant:
"To the decree herein, and the judgment entered thereon, the appellant gave due notice of appeal, on the following grounds:
"Because it is respectfully submitted his Honor, the Circuit Judge, erred as follows:
"(1) In holding that he was bound by the record in the case of Smith v. Pitman, when there is no evidence that Berry Wilson was party to that suit, or that he was vouched into the suit because of the warranty in his deed to John T. Smith.
"(2) In construing the decree in the case of Smith v. Pitman `as confirming the master's findings that Smith held eleven twenty-eighths of the fee and that the remaining seventeen twenty-eighths was in the holders of the paramount title,' and in adjudging that the sum of $1,000, which the said John T. Smith accepted by compromise in settlement of his interest in said suit was equivalent to eleven twenty-eighths of $4,300.00.
"(3) In failing to take into consideration the value of the fee conditional estate conveyed by Berry Wilson to the plaintiff, John T. Smith, under which the plaintiff enjoyed the full and uninterrupted possession of said premises from the date of said deed in 1907 until they were sold in January, 1922, to J.V. Henson, in the case of Smith et al. v. Pitman et al. The master was correct in adjudging the value of this estate at one-half of the fee in accordance with the well-settled rule laid down in the case of Cain v. Cain, 53 S.C. 350, 31 S.E., 278, 69 Am. St. Rep., 863, and his Honor, the Circuit Judge, was in error in failing to take into consideration in this accounting the estate conveyed during the lives of Sarah Smith and Vianna Rogers.
"(4) In not holding that the plaintiff herein could not recover anything whatever on account of the alleged breach of warranty in the deed of Berry Wilson, for the reason that he had accepted the said deed with knowledge that the same conveyed only a fee conditional, and not a fee simple, and willingly assumed all risk incident thereto.
"(5) In not confirming the master's report herein, and in not decreeing judgment in favor of the defendant against the plaintiff for the sum of $364.61, as recommended in said report.
"(6) In not increasing the amount of judgment in favor of defendant and against the plaintiff to the extent of the value of the plaintiff's eleven twenty-eighths interest in said tracts of land, which interest amounted to eleven twenty-eighths of $4,300.00, or $1,689.25. This amount, of course, being reduced by the sum of $1,000.00, which was paid by compromise settlement in the case of Smith et al. v. Pitman et al., after taking into consideration the various other claims involved in that action."
Messrs. Bomar Osborne, for appellant, cite: 53 S.C. 350. Messrs. J.D. Lanford, and J. Hertz Brown, for respondent, cite: Measure of damages for partial breach of covenant: Cheves, 127; 1 McCord, 466; 1 Bail, 128; 43 S.C. 29; 60 S.C. 526; 46 S.C. 356; 82 S.C. 66.
January 3, 1930. The opinion of the Court was delivered by
The conclusions of Hon. T.S. Sease, Circuit Judge, in this cause, are satisfactory to this Court, and his decree, which will be reported, is hereby affirmed.
MR. CHIEF JUSTICE WATTS concurs.
MESSRS. JUSTICES STABLER and CARTER concur in result.
This is an action by the plaintiff, John T. Smith, against the defendant, W.J. Tapp, as administrator of the estate of Berry Wilson, for damages on account of the alleged breach of warranty in a deed conveying a tract of land, executed by Berry Wilson to the plaintiff. The defendant set up a counterclaim for damages on account of the alleged breach of a contract, by which the plaintiff, John T. Smith, assumed the payment of an outstanding mortgage upon the property as the sole consideration of the deed.
The facts of the case are extremely complicated; a detailed statement of them appears essential in reaching the justice of the controversy.
In December, 1907, the intestate, Berry Wilson, owned, or thought he owned, in fee simple, five distinct parcels of real estate: (1) His home place; (2) an 18-acre tract; (3) a lot at Campobello; (4) a 70 1/2-acre tract, which will be referred to as "Tract A"; and a 70 1/2-acre tract of the Sanford Smith property, which will be referred to as the "Smith Tract B."
Berry Wilson had mortgaged all five of these parcels of land to W.S. Caldwell, to secure a note upon which there was due in December, 1907, about $4,550.00. He was getting old and was much concerned about this debt, which was a lien upon his home and practically all of the land that he owned.
The plaintiff, his son-in-law, it must be presumed, was cognizant of the situation and moving impulse of Wilson. On December 5, 1907, Wilson conveyed to the plaintiff the two tracts of 70 1/2 acres each, tract A and Smith tract B; the consideration of the deed was solely the assumption by plaintiff of the Caldwell mortgage of $4,550. The plaintiff went immediately into possession of the two tracts conveyed, aggregating 141 acres, and continued in possession until 1922; the old man naturally resting under the comforting assurance that the disturbing debt had been taken off his shoulders, and that the other three parcels of land, including the home place, were his forever, subject to existing mortgages upon them.
During the succeeding years, from 1907 to 1921, the plaintiff, all the while being in possession of the two tracts, made sundry payments upon the Caldwell mortgage, upon which in 1921 there was still unpaid $4,004.15, besides attorney's fees at 10 per cent., hardly paying anything upon the original undertaking of $4,550.
In 1920 the storm broke. The 70 1/2-acre tract, Smith tract B, had formerly belonged to Sanford Smith, grandfather of the plaintiff. In 1890 Sanford Smith had conveyed the tract to his two daughters, Sarah and Vianna, in fee conditional, and in 1894 they had conveyed it in fee simple to the intestate, Berry Wilson. Vianna, one of the daughters, grantees of their father, Sanford Smith, died in 1901, intestate, never having had issue; the other daughter, Sarah (now known as Sallie Pitman), was alive at the time of the commencement of the present action, 1924, aged 78; she also never had issue.
Upon the death of Vianna without having had issue, the undivided half interest which had been conveyed to her reverted to the estate of Sanford Smith, and vested in his heirs at law, who at that time were a son, J.R. Smith, the daughter, Sallie Pitman, and two others, not named in the record for appeal. J.R. Smith had seven children when he died in 1915, one of whom was the plaintiff, John T. Smith.
Each of the children of Sanford Smith was entitled to one-fourth undivided interest in the one-half interest of Vianna which reverted to the estate, and the plaintiff, upon the death of his father, J.R. Smith, became entitled to one-seventh of his father's interest, which was one-fourth of one-half, one-eighth; one-seventh of one-eighth gave him one fifty-sixth interest. The daughter, Sallie Pitman, having conveyed her interest in the tract in fee simple by warranty deed to Berry Wilson, who conveyed to the plaintiff, the plaintiff became entitled to the interest of Sallie Pitman in the half interest of Vianna which reverted; that gave him one-fourth of one-half, one-eighth, additional. By the conveyances referred to John T. Smith also became entitled to the half interest which had been conveyed to Sallie Pitman. The master treated this fee conditional estate of Sallie Pitman (she never having had issue and at the time being beyond the child-bearing age) as a life estate, and held that under the case of Cain v. Cain, 53 S.C. 350, 31 S.E., 278, 69 Am. St. Rep., 863, this life estate was equivalent to one-half of the fee-simple interest, which was one-half, and that this one-fourth, added to the inherited interests of one fifty-sixth and one-eighth, gave the plaintiff eleven twenty-eighths of the whole. The plaintiff was a party to the partition proceeding, but Wilson was not, and was not bound thereby as the plaintiff was. Although for practical purposes the interest of Sallie Pitman was equivalent to a life estate under the circumstance, at the same time legally it was not, but continued as it had been a fee conditional, which passed to Wilson under her deed, and from him to the plaintiff. The plaintiff had no right to treat it as a life estate without the concurrence of Wilson. So that the real interest which Smith acquired was one fifty-sixth plus one-eighth by inheritance (one-seventh), and the fee conditional of Sallie Pitman.
Accordingly, in 1920, certain of the heirs at law of Sanford Smith instituted an action against the plaintiff in this action, John T. Smith, and others, for a partition of the tract of land, along the lines above indicated. In that action the defendants were Sallie Pitman, the plaintiff herein, John T. Smith, certain other heirs of Sanford Smith, and the executors of the mortgagee W.S. Caldwell. The plaintiff in the present action, defendant in that, John T. Smith, claimed ownership of the land in fee, and set up adverse possession and a claim of $2,500.00 for improvements. The plaintiff in that action demanded an account of the rents and profits of the land by John T. Smith while in possession for 14 years. The case was referred to the master, who filed a report, dated July 23, 1921, holding that John T. Smith was entitled to an interest of eleven twenty-eighths in the tract, subject to the Caldwell mortgage of $4,004.15, plus attorney's fees, and that the remainder, seventeen twenty-eighths, was distributable to the other heirs of Sanford Smith, not subject to the Caldwell mortgage. He held, also, that the claim of John T. Smith for improvements should be set off against his accountability for rents and profits. To this report John T. Smith filed exceptions, and, pending a hearing, a consent decree was signed by his Honor Judge Sease, dated December 8, 1921, ordering a sale of the tract for partition, the proceeds of sale to be held for the further order of the Court. The property was sold under this decree on January 4, 1922, and purchased by one J.V. Henson for $4,300, who complied.
Later in 1922 the matter came up before his Honor, Judge Sease, who filed a final decree, dated December 13, 1922, in which he confirmed the master's report in all respects, except that he adjudged, "that the master's report be modified by allowing to the defendant John T. Smith the sum of $1,000.00, from the proceeds of the sale of the real estate, as his full share therein, instead of the eleven twenty-eighths part thereof, as allowed in the master's report."
John T. Smith appears to have acquiesced in this decree, as no appeal is noted in the record by him from it. The amount, $1,000.00, allowed thereby to John T. Smith, was applied by the master to the Caldwell mortgage on December 27, 1922. (It will be observed in passing, that the security of the Caldwell mortgage, which covered the tract being partitioned, was diminished by the difference between $4,300.00, the sale price of the land, and the $1,000.00, John T. Smith's interest, applied to it.)
After the sale of the tract in January, 1922, pursuant to the consent decree of December, 1921, to wit, in February, 1922, an action to foreclose the Caldwell mortgage upon the four remaining parcels of land, Nos. 1, 2, 3, and 4 above described (evidently omitting No. 5, the tract partitioned), was instituted, and resulted in a decree of foreclosure and sale. The sale apparently was had in the fall of 1922, and the property brought:
(1) The home place .......................... $ 7,500.00 (2) The 18-acre tract ....................... 750.00 (3) The Campobello lot ...................... 200.00 (4) Tract A, the other 70 1/2-acre tract .... 3,525.00 ------------ Total ................................... $ 11,970.00 These tracts were covered by other mortgages than the Caldwell mortgage. There was due upon the Caldwell mortgage .... $ 4,912.13 Subject to the credit of the interest of John T. Smith, paid by the master upon it, as above related ................................. 1,000.00 ------------ Balance ................................. $ 3,912.13 To this balance was applied the proceeds of the sale of Tract A ......................... 3,525.00 ------------ Leaving ................................. $ 387.13Which was paid out of the proceeds of parcels 2 and 3.
This amount, $387.13, represents the amount contributed by Berry Wilson to the payment of the Caldwell mortgage, the payment of which John T. Smith had assumed. He had title to both tracts A and B (4 and 5); they were both covered by the Caldwell mortgage, which he had assumed; he has no right to complain that the proceeds of tract A, $3,525, and of his interest in tract B, $1,000, were applied to the Caldwell mortgage; and Berry Wilson would have no right to compensation from John T. Smith to a greater extent than the proceeds of the sale of his land, $387.13, went to extinguish that mortgage, plus $94.42 costs, total $481.55, with interest from January 1, 1923, to January 1, 1930, $200.20; total, $681.75.
After, then, the sale of tract B for partition in January, 1922, and the sale of the other four tracts under foreclosure of the Caldwell mortgage in November, 1922, to wit, in 1924, John T. Smith instituted the present action for damages on account of the breach of warranty contained in the deed to tract B from Berry Wilson to him. He fixes his damages at $2,393.25, the alleged purchase price of the tract, with interest from the date of his purchase, December 5, 1907, totaling $4,567.40.
The defendant answered the complaint, admitting the execution of the deed, denying the other allegations of the complaint, and setting up a counterclaim of $4,500.00, on account of the breach of the plaintiff's contract to pay the Caldwell mortgage as the sole consideration of the deed. The case was referred generally to the master, who filed a report, dated November 18, 1926. Upon exceptions it was confirmed, except in the particular noted. From the decree of his Honor, Judge Sease, the defendant has appealed.
If John T: Smith had not assumed the payment of the Caldwell mortgage, I think that the breach of warranty would have been measured by the value of the entire tract Smith tract B, the tract that was sold for partition, regardless of the fact that he had inherited one-seventh of it, as explained; otherwise, he would have received no benefit from his inheritance, and Wilson, who had no interest in that inheritance, would have received the benefit of it in the reduction of his breach of warranty liability. But, as John T. Smith had assumed the payment of the Caldwell mortgage, which covered the entire interests in that tract, including both his inherited interest and the fee conditional interest of Sallie Pitman in it, he cannot complain that his interests were available to Wilson in the reduction of his liability.
I think that the proper decision of this controversy should have been upon these lines:
At the time of the partition sale, which is claimed to have constituted the eviction of which he claims, John T. Smith had personally one-seventh interest in tract B, that is the one fifty-sixth inherited from his father and the one-eighth acquired by the deed of Sallie Pitman. He also acquired from the deed of Sallie Pitman her interest in the fee conditional created by the deed of her father, which was one-half, practically, under the circumstances, a life estate; that is, the right to the possession during the life of Sallie Pitman, for the reverter could not take place until she died. He was therefore evicted out of six-sevenths of the tract, subject to the right of possession of one-half of it during the life of Sallie Pitman, and the measure of his damages under the Statute 3 Code, § 5306, is "the amount of the purchase money at the time of alienation, with legal interest from the time of eviction." Tracts A and B, covered by the Wilson deed, contained each the same area and were practically of the same value; the consideration was the assumption of the Caldwell mortgage, upon which the master finds that there was then unpaid the amount of $4,563.08, which included 10 per cent. attorney's fees. The real amount unpaid, less such attorney's fees, was $4,148.25. It is not fair to charge Wilson with the amount of the attorney's fees, which had not been incurred, and could not have been, if John T. Smith had carried out his obligation to pay the mortgage off and relieve Wilson's other land from its lien. The "amount of the purchase price at the time of the alienation" should therefore be one-half of $4,148.25, as that included both tracts A and B, $2,074.13. The interest upon this from January 4, 1922, the date of the partition sale, to December 13, 1922, the date of the foreclosure sale, would be $169.35; total, $2,243.47. From this should be deducted the amount and costs contributed by the estate of Wilson at that time, $481.55, leaving $1,761.92; from this should be deducted the value of (practically) the life estate of Sallie Pitman in one-half of the tract. What that is I have no data upon which to form an opinion.
I have not considered the question of the defendant's alleged counterclaim as there is no exception raising it.
I think that the decree of his Honor, Judge Sease, should be modified, and the following adjudications established:
(1) That the plaintiff is entitled to $2,243.47, with interest from December 13, 1922.
(2) That the defendant is entitled to a credit upon this amount, of $481.55, with interest from December 27, 1922.
(3) That the defendant is entitled to a further credit of the value of the interest of Sallie Pitman in one-half of tract B, to be ascertained by a reference to the Master.
(4) That, if the credits referred to exceed the liability in (1) supra, the defendant be awarded judgment therefor against the plaintiff.