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situation. He reached Wetmore two hours obstructions known to the company of late. He was ordered to wait there for the which he was not advised, that caused the passenger train coming north, which did not accident. If the proof had in any degree arrive until 9 o'clock. In the meantime he supported this averment,-if it had tended was sent to Grady for the extra track gang. to show that there were dangerous obstrucThis advised him there was trouble in the ns on the track which were known to the mountains. Because he anticipated trouble company, and that, in spite of his protest ahead-feared there might be slides on the the company had ordered him on without track-he asked to be allowed to stay at advising him of their presence, and without Wetmore overnight. The exigencies of the taking proper steps to protect him against situation would not permit the granting of them,—another case would be presented. the request. It was necessary to get the But the accident was not due to an obstrucextra gang through to Appalachia that tion into which Kinzel ran because of the night, so as to put the track between there darkness. Every reasonable precaution was and Farner in condition for the next day's taken by the company to protect him business. So he was told to proceed, but to against obstructions. He was warned to run slowly and carefully and look out for run slowly and look out for slides, and the slides. This again was notice and warning track was carefully patrolled. Everything that there was danger of slides ahead. It was done that could be done. The slide is to be observed, however, that the order which caused the accident was not known to was not a special one. It did not require the company when it directed Kinzel to proexceptional work,-work outside his line of ceed south. It had not then occurred, and duty. It only required him to do the work could not have been anticipated. The track he had undertaken to do when he accepted was clear when Kinzel reached the place of the job. When he pulled out of Wetmore the accident, and the light of the trackman that night, although he did so reluctantly, who had preceded him but a few minutes he nevertheless assumed the risk. He did was in sight. The slide came on so suddenonly what every engineer must do under ly that Kinzel could not avoid it. He did like circumstances. 1 Labatt, Mast. & S. not run into the slide because of the dark§ 438, and cases cited; Linch v. Sagamore ness, but the slide virtually ran into him. Mfg. Co. 143 Mass. 206, 210, 9 N. E. 728: In an instant the track was swept from unToomey v. Eureka Iron & Steel Works, 89 der him. The result would have been the Mich. 249, 50 N. W. 850; Chesapeake & same if, under similar circumstances, the 0. R. Co. v. Hennessey, 38 C. C. A. 307, and slide had occurred during the daytime. note, p. 314, 96 Fed. 713.

We agree with the court below that it was Kinzel's reluctance to go on that night a case of pure accident, for which the comwas due to the fact that he feared that in pany cannot be held liable. the darkness he might run into obstruc The judgment is affirmed. tions. The declaration averred there were

TENNESSEE SUPREME COURT.

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or

1. The rental value of the premises

during the possession of the vendee must be deducted from his recovery for breach of a covenant of seisin, which is made by an outstanding contingent remainder. where his deed gave him at least a life estate, and the life tenancy has continued SO as to preclude the remainder-men from

demanding rents for any part of the time. 2. Restoration of possession is an in

dispensable ingredient of a decree In equity in favor of a vendee for breach of a

covenant of seisin made by an outstanding contingent remainder, where his deed gave him at least a life estate, and he has had the

benefit of possession.
3. A recovery for improvements to

the extent that they may have per-
manently enhanced the rental
usa ble value of the life estate may be
allowed to the vendee, with his purchase
money, interest thereon, and taxes paid, on
breach of a covenant of seisin made by an
outstanding contingent remainder, when his
recovery in equity is conditioned on his
restoration of possession to the vendor, and
his accounting for his use of the premises.

(February 6, 1897.)

NO'TE.-See the following case of Gerbert v. Sons of Abraham, and note.

C

ROSS-APPEALS from a decree of the

Court of Chancery Appeals modifying a decree of the Chancery Court for Davidson

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County which set aside, under a bill of re Under no circumstances can any defense view, a decree which had been passed for be made after twelve months, when attachthe rescission of a contract to purchase realment has been properly issued and levied. estate; the plaintiff appealing from Mulloy v. White, 3 Tenn. Ch. 9; Claymuch of the decree as denied him a recovery brook v. Wade, 7 Coldw. 562; Bledsoe v. for improvements, and defendant appealing Wright, 2 Baxt. 471. from so much as refused to compel plaintiff Mr. A. S. Colyar for defendant. to restore what he had received under the contract. Modified.

non:

Caldwell, J., delivered the opinion of The facts are stated in the opinion.

the court: Mr. John B. Daniel, for plaintiff, Bran This is a bill of review. In the year 1885

the complainant, Mrs. Elizabeth Curtis, sold The very fact that Brannon came into and conveyed to the defendant, W. D. court and asked and obtained a rescission Brannon, a small building lot in the city of was in law a restoration, and had that ef- Nashville at the price of $900. The deed fect.

executed contained a covenant of seisin in Kincaid v. Brittain, 5 Sneed, 124, Rawle, fee, and the vendee went into actual posses. Covenants for Title, pp. 100-105; Park v. sion. He improved the lot, and is still in Cheek, 4 Coldw. 28; Recohs v. Younglove, 8 possession. In a litigation between other Baxt. 387.

parties about a tract of land including this Where suit is brought upon breach of any lot, the court, at its December term, 1892, of the covenants and judgment obtained, in construing a certain device, adjudged and that judgment satisfied, it will have that one Overton, whose deed constituted a the effect to preclude the vendee from assert- link in the title of Mrs. Curtis to this lot, ing any rights to the property conveyed to did not in fact own the fee, but that his him out of the conveyance to which the ac- ownership was subject to a contingent retion arose.

mainder in favor of any child or children he 2 Sutherland, Damages, 265; Tucker v. might leave surviving at his death. On Clarke, 2 Sandf. Ch. 96; Noonan v. Ilsley, account of that adjudication, and the conse21 Wis. 146; Porter v. Hill, 9 Mass. 36. quent impairment of his title, Brannon 6 Am. Dec. 22; Stinson v. Sumner, 9 Mass. thereafter, while still in possession of the 150, 6 Am. Dec. 49; Blanchard v. Ellis, 1 lot, and before the falling in of the life esGray, 202, 61 Am. Dec. 417; Parker v. tate, filed his bill against Mrs. Curtis in the Brown, 15 N. H. 188.

chancery court of Davidson county, alleging The covenant of seisin is broken as soon her nonresidence, and the breach of her as made, if in fact the vendor did not have covenant of seisin, and seeking a recovery a good title.

against her for the $900 paid for the lot, Kincaid v. Brittain, 5 Sneed, 120; Park with interest, for $560 for improvements by v. Cheek, 4 Coldw. 20.

him placed upon the land, and for $60 Ordinarily the measure of damages is the taxes paid thereon. The bill was taken for purchase money and interest. The courts confessed against Mrs. Curtis, and theremodify the rule to suit the facts of any after a final decree was rendered against particular case, to the end that the equity her. This decree `allowed Brannon a full of the case may be met. The general state- recovery for all he claimed, and directed a ment of the rule has not any reference to im- sale of the property attached, without reprovements which the vendee placed upon quiring him to surrender possession, or to the property to the extent that such improve account for mesne profits. In January ments have permanently enhanced the value 1896, after the sale of the property attached. of the property.

and before confirmation, Mrs. Curtis filed 2 Sutherland, Damages, 285; Morrison v. the present bill to review the final decree Underwood, 20 N. H. 369; Hartford & s. against her, under Brannon's bill, for errors Ore Co. v. Miller, 41 Conn. 112, Rawle, of law alleged to be apparent upon its face, Covenants for Title, 236; Staats v. Ten and for newly discovered evidence. BranEyck, 3 Caines, 111, 2 Am. Dec. 254.

non's demurrer to this bill was overruled In this case the damage incurred is the by the chancellor, who adjudged that the dedirect result of a breach of the contract, and cree impeached was erroneous in law upon a result which must have been contemplated its face in three particulars: First, beby tne party entering into the covenant. cause it allowed the vendee a full recovery

Mayne, Damages, 2d ed. 147; Dart, Ven- of purchase money and interest thereon, dors, 4th ed. 726.

without abatement for rents and profits; The decree is as absolutely binding and secondly, because it allowed such recovery conclusive on Mrs. Curtis as if she had without restoring the possession to the been personally served with the process, and vendor; and, thirdly, because it allowed a had defended.

recovery for improvements without proper

cause shown. And thereupon the chancellor | Backus v. McCoy, 3 Ohio, 211, 17 Am. Dec. further adjudged that the said decree be 585; Herndon v. Harrisson, 34 Miss. 486, reviewed, reversed, and set aside, for the 69 Am. Dec. 399; Swafford v. Whipple, 3 reasons stated, and that a reference be had to G. Greene, 261, 54 Am. Dec. 498; Gilbert v. ascertain the value of the rents and profits Bulkley, 5 Conn. 262, 13 Am. Dec. 57; Meckof the lot since the vendee went into posses- lem v. Blake, 99 Am. Dec. 73, note (22 Wis. sion. The court of chancery appeals affirmed 195); 4 Kent, Com. *475; 2 Sutherland, the decree under the bill of review in so Damages, § 593; Rawle, Covenants for Title, far as it denied Brannon a recovery for im- $ 158; 3 Sedgw. Damages, 8th ed. § 966; 2 provements, but reversed it, and restored Devlin, Deeds, § 894. the decree under the original bill, in other 3. The recovery of the consideration and respects. Both parties have appealed, and in interest is subject, however, to abatement this court complain of such parts of the for rents during the vendee's possession, decree of the court of chancery appeals as when it appears that he cannot be made liaare adverse to them, respectively.

ble therefor to the owner of the para1. A covenant of seisin is an assurance to mount title. A vendee, having enjoyed the vendee that the vendor has the very es- he advantages of possession at the expense tate, in quantity and quality, which he pur- of his vendor, is bound, especially in a ports to convey. It is a personal covenant court of equity, to account for those advanin præsenti, and, if not true, is breached tages when he demands repayment of the the instant it is made, and an immediate purchase money with interest. He cannot, right of action accrues to the vendee for its in such a case, hold benefits, and at the same breach, without and before eviction. These time recover as if he had not received them. well-settled propositions are announced in Some of the authorities treat liability for the following cases,-partly in some and rents as the reason for allowing interest partly in others,—and as many more cases on the consideration paid.

Kent says: to the same effect could readily be cited: “The interest is to countervail the claim Kincaid v. Brittain, 5 Sneed, 119; Recohs for mesne profits, to which the grantee is v. Younglove, 8 Baxt. 387; Park v. Cheek, liable." 4 Kent, Com. *475. Sutherland 4 Coldw. 26; Robinson v. Coulter, 90 Tenn. says: "Possession without title may compen707, 25 Am. St. Rep. 708, 18 S. W. 250; sate for the interest on the purchase money, Baird v. Goodrich, 5 Heisk. 23; Pollard v. if there be no liability, which will be enforced Duight, 4 Cranch, 421, 2 L. ed. 666; Le Roy to the real owner.” 2 Sutherland, Damages, v. Beard, 8 How. 451, 12 L. ed. 1151; Peters $ 598. In Flint v. Steadman it was ruled v. Bowman, 98 U. S. 58, 25 L. ed. 91; Logan that the vendee, who had been in possession v. Moulder, 1 Ark. 313, 33 Am. Dec. 338: | in such manner as not to be accountable for Baker v. Hunt, 40 Ill. 264, 89 Am. Dec. the use of the premises, could recover only 346; Clement v. Bank of Rutland (Clement the purchase money without interest. 36 v. National Bank) 61 Vt. 298, 4 L. R. A. Vt. 210. We see no good reason for limit425, 17 Atl. 717; Gilbert v. Bulkley, 5 Conn. ing the vendee's liability for rents to the 262, 13 Am. Dec. 57; Dale v. Shively, 8 Kan. I interest on the purchase money if they have 276; Real v. Hollister, 20 Neb. 112, 29 N. in fact been of greater value. He should W. 189; Murphy v. Price, 48 Mo. 247; Bick-account for all the benefits he has derived ford v. Page, 2 Mass. 455; Wilson v. Coch- from the possession, and, if not responsible ran, 46 Pa. 229; Abbott v. Allen, 14 Johns. therefor to some other person, his vendor 252; Fitzhugh v. Croghan, 2 J. J. Marsh, should have an abatement to that extent. 429, 19 Am. Dec. 139; Price v. Deal, 90 N “The whole consideration money and interC. 290; Brandt v. Foster, 5 Iowa, 287; est cannot be the criterion of damages, exMorse v. Garner, 47 Am. Dec. 570, and note cept in those cases where the purchaser de(1 Strobh. L. 514); Backus v. McCoy, 3 rives no benefit from the conveyance.” 2 Ohio, 211, 17 Am. Dec. 585; Laurence v. Sutherland, Damages, $ 597. “But if Montgomery, 37 Cal. 183. See also 2 Suthsome title passes, though so far short of erland, Damages, 2d ed. $ 592; Rawle, Cove that covenanted for that the grantee is nants for Title, 5th ed. $ 58; 4 Kent, Com. clearly not bound to retain it for a propor*471; 2 Devlin, Deeds, $ 942.

tional part of the purchase money, on ten2. If the breach be total, or such that dering a reconveyance and surrendering posthe vendee may so treat it, the measure of session recovery may be had of the entire damages is, ordinarily, the amount of con consideration[money] and interest, together sideration paid, with interest thereon. Kin- with taxes paid, less the value of rents recaid v. Brittain, 5 Sneed, 119; Park v. Cheek. ceived." Id. § 599. This last proposition 4 Coldw. 27; Recohs v. Younglove, 8 Baxt. is based upon the decision in Frazer vi 387; Logan v. Moulder, 1 Ark. 313, 33 Am. Peoria County, 74 Ill. 282, wbich goes fur. Dec. 344; Bibb v. Freeman, 59 Ala. 612; | ther than the text, and holds that the

recover

grantee must answer not only for “rents | 202; Conner v. Henderson, 15 Mass. 319, 8 received,” but also for those that "could Am. Dec. 103; Adams, Eq. 191; 2 Kent, have been received from the property.” Id. Com. 475, 476, 480; Blackburn v. 292. It is said in another case that, if the Smith, 2 Exch. 783; 2 Warvelle, Vendors, s vendee takes any benefit, directly, or indi. 29; Shively v. Semi-Tropic Land & W. Co. rectly, from the deed, he must be charged 99 Cal. 259, 33 Pac. 848; Farmers' Bank v. with that benefit in the assessment of his Groves, 12 How. 51, 13 L. ed. 889; Gay v. damages. Hartford & 8. Ore Co. v. Miller, Alter, 102 U. S. 79, 26 L. ed. 48; Brown v. 41 ('onn. 113. This court, in Park v. Cheek, | Witter, 10 Ohio, 142; Coffee v. Ruffin, 4 which was an action at law for a breach of Coldw. 516; Pharr v. Bachelor, 3 Ala. 245; a covenant of seisin, said: “The defendant 21 Am. & Eng. Enc. Law, pp. 84-87, and citawill have the right, where the plaintiff tions; Coolidge v. Brigham, 1 Met. 547; seeks .. to

the purchase Kansas City Land Co. v. Hill, 87 Tenn. 589, money and interest, to set off the rents and 5 L. R. A. 45, 11 S. W.797; Johnson v. Jackprofits of the land, and such damages as may son, 27 Miss. 498, 61 Am. Dec. 522; Lake be sustained by reason of the plaintiff re Shore & M. S. R. Co. v. Richards, 30 L. R. moving and appropriating any permanent A. 33, and notes, 44, 45 (152 Ill. 59, 38 N. improvements the defendant may have erect. E. 773). ed on the premises.” 4 Coldw. 28.

Never, when adequate relief can be grant4. Having been in rightful possession uned to both parties, will it be given to one der a deed passing a good and perfect title and withheld from the other. Had Brannon to at least a life estate in the land con- sued at law, the measure of damages would veyed, and the life tenant being still alive, have been the difference between the value so as to preclude the remainder-men from of the life estate acquired and the fee condemanding rents for any part of the time. tracted for. Recohs v. Younglove, 8 Baxt. the vendee in the present case was liable to 385; 2 Devlin, Deeds, $ 901. It is only in his vendor for the rental value of the prem- a court of equity, and upon the ground of ises from the inception of his possession to rescission, that he can have the larger recovthe date of the decree, and it was an error ery. Being in that forum, and seeking reof law not to reduce the vendee's recovery lief upon that ground, he must, by the same to that extent.

decree, surrender the possession, and account 5. The original decree was further erro for mesne profits as well. Asking equity, neous in that it allowed the vendee a full he must do equity. It has been said, and recovery for the breach of the covenant of upon good reason, that a vendee in like sitseisin as in case of a total failure in title, uation with Brannon should reconvey or or of rescission without at the same time tender a reconveyance before asking a rerequiring him to surrender possession of the covery for the breach of a covenant of seisin. land. It may be true, as suggested by sorre Frazer v. Peoria County, 74 Ill. 291; 2 of the authorites, that such a recovery will. Sutherland, Damages, § 599. Rawle reby operation of law, revest the vendor with marks that “it would, perhaps, be a matter such title as he had originally (Kincaid v. of prudence for the purchaser to offer such Brittain, 5 Sneed, 124; Robinson v. Coulter, a reconveyance before or at the time of the 90 Tenn. 709, 25 Am. St. Rep. 708, 18 S. W. trial, although it would be no bar to liis ac250; Recohs V: Younglove, 8 Baxt. 389; tion that he had not done so.” Rawle, CovRawle, Covenants for Title, $ 184), and it enants for Title, $ 185. In Mecklem v. may likewise be true, as suggested by the Blake the court ruled that a grantee delearned court of chancery appeals and by siring to rescind and recover purchase the same authorities, that such a recovery money and interest must tender a even at law, would authorize an action by veyance, and offer to restore possession. 22 the vendor to regain possession; but that Wis. 495, 99 Am. Dec. 68. is not enough in a court of equity. In that 6. At an early period in American jurisforum the vendee will not be allowed a full prudence it was decided that a vendee suing recovery, except upon the surrender of pos- for a total breach of the covenant of sei in session. Restoration of such possession as could not augment his recovery by showing the vendee has is an indispensable ingre- a rise in value, whether the enhancement dient of the decree. It is one of the things arose from extrinsic causes, as in Staats v. essential to the right of full recovery, and Ten Eyck, 3 Caines, lllf, 2 Am. Dec. 254, without it the conscience of the court is not or from improvements placed upon the land moved in his favor. In all matters of re- by him, as in Bender v. Fromberger, 4 Dall. scission, and in all relief akin to rescission, 442, 1 L. ed. and Pitcher v. Livingston, a court of equity will invariably put the 4 Johns. 1, 4 Am. Dec. 229; and such is the parties as nearly in statu quo as possible. general rule prevailing at this day. 4 Kent, Hill v. Harriman, 95 Tenn. 305, 32 S. W. Com. *475; Rawle, Covenants for Title, $

recon

158; 3 Sedgw. Damages, &$958, 961; 2 | account for rents she will have advantage Sutherland, Damages, $ 593; 2 Devlin, Deeds, of the improvements, since the amount of $ 894; and cases cited by the text writers, her credit for mesne profits will be deterand in note to Mecklem v. Blake, 99 Am. mined from the annual rental or usable Dec. 73. Perhaps the most important reason value of the land with the improvemants underlying this rule is the fact that the vend- upon it. Such equitable circumstances imor ordinarily receives no benefit whatever pel a court of conscience to grant the vendee from the enhanced value of the land. He a recovery for improvements to the extent does not, in the usual case, actually regain that they may have permanently enhanced the land, but it goes to the owner of the par- tne rental or usable value of life estate. amount title, with all its enhancement. Enter decree in accordance with this opin

7. But the present case is not the usual ion, and remand for an account, in which one, and the reason for the rule is not en- Brannon will be credited with (1) purchase tirely applicable. It applies as to the re- money and interest, (2) taxes paid, and (3) mainder estate, but not as to the life estate. improvements, so far as they may have enThere is no paramount ownership of the life hanced the rental or usable value up the estate. The vendor is actually restored to life estate, and charged with the annual the possession of the property in its improved rents or use of the premises in the condicondition, and is, undoubtedly, entitled to tion in which they may have been from its free use and enjoyment so long as the time to time. life tenant shall survive. Moreover, in the

NEW JERSEY COURT OF ERRORS AND APPEALS.

an

on

Peter GERBERT, Exr., etc., of John Snyder | taining a covenant of warranty, and there Deceased, Puff. in Err.,

had been an ouster by the remainder-men, v.

and the defendant in error had brought an CONGREGATION OF THE SONS OF action for damages growing out of the ABRAHAM,

breach of the covenant of warranty, it would

have been entitled to recover, as damages, (59 N. J. L. 160.)

only the consideration money named in the .1. In action

contract for deed, together with interest thereon not exbreach of covenant to convey real ceeding six years antecedent to the evicestate with warranty of title, where the

tion, together with costs; and, in the event vendor's title is defective, nominal damages,

that the purchase money was wholly unpaid, only, can be recovered. 2. Where there is a contract to con

it would then have recovered only nominal vey unimproved land with warranty damages. of title, and the vendee, before conveyance Stewart v. Drake, 9 N. J. L. 139; Holmes is to be made, erects buildings upon the land

v. Sinnickson, 15 N. J. L. 313; Morris v. without the request of the vendor, in an

Rowan, 17 N. J. L. 304. action on contract to recover damages for failure to convey, the vendor's title proving

There ought to be, in our own state, a unidefective, the value of the buildings cannot be formity of doctrine as to the subject of damrecovered by the vendee.

ages where the injury is the same. (November 23, 1896.)

Since the decision of Drake v. Baker, 34

N. J. L. 358, the English cases relied on County to review a judgment in favor have been declared not to express the law of plaintiff in an action brought to recover

on the subject. damages for breach of contract to convey

Bain v. Fothergill, L. R. 7 H. L. 158; certain real estate. Reversed.

Rowe v. School Board, L. R. 36 Ch. Div. 619. The facts are stated in the opinion.

If the defendant in error was entitled to Messrs. Colie & Swayze, with Messrs.

recover substantial damages for the loss of Blake & Howe, for plaintiff in error:

its bargain, the trial court erred in inThe plaintiff below was not entitled to recover more than nominal damages for the cost of the improvements put by the lessee

cluding therein the sum of $2,632.99, the breach of the covenant to convey. If Snyder had made a conveyance in his upon the property. Improvements of the

character in question were not removable lifetime to the defendant in error, con

as between landlord and tenant; but, as * Headnotes by VAN SYCKEL, J.

suming that they were removable, then, un

der the facts in this case, no damages can NOTE.-As to measure of damages for failure to convey real estate, see Morgan v. Bell, 16 be claimed based upon their value. If they L. R. A. 614, also the case immediately pre

were not removable fixtures, as between ceding this one.

landlord and tenant, then the tenant could

E

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