¶1
The opinion of the Court was delivered by
Mr. Justice Beease.
¶2
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. Ci-iiEE Justice"Watts concurs.
Messrs. .Justices StabeEr and Carter concur in result.
Download
Copy
Embed on your site
iframe Markdown Preview card Button Hover to preview · click to copy the code
Case posture Posture 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. Source: CourtListener
