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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 tions 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 O. 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 a case of pure accident, for which the company cannot be held liable. The judgment is affirmed.

Kinzel's reluctance to go on that night was due to the fact that he feared that in the darkness he might run into obstructions. The declaration averred there were




Elizabeth CURTIS.

(98 Tenn. 153.)

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

NOTE. See the following case of Gerbert v. Sons of Abraham, and note.

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 permanently enhanced the rental or usable 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.)

from a decree of the

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

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 SO 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 to restore what he had received under the contract. Modified.

Mr. A. S. Colyar for defendant.

The facts are stated in the opinion.

Mr. John B. Daniel, for plaintiff, Bran


The very fact that Brannon came into court and asked and obtained a rescission was in law a restoration, and had that effect.

Kincaid v. Brittain, 5 Sneed, 124, Rawle, Covenants for Title, pp. 100-105; Park v. Cheek, 4 Coldw. 28; Recohs v. Younglove, 8 Baxt. 387.

This is a bill of review. In the year 1885 the complainant, Mrs. Elizabeth Curtis, sold and conveyed to the defendant, W. D. Brannon, a small building lot in the city of Nashville at the price of $900. The deed executed contained a covenant of seisin in fee, and the vendee went into actual possession. He improved the lot, and is still in possession. In a litigation between other parties about a tract of land including this lot, the court, at its December term, 1892, in construing a certain device, adjudged that one Overton, whose deed constituted a link in the title of Mrs. Curtis to this lot, did not in fact own the fee, but that his ownership was subject to a contingent remainder in favor of any child or children he might leave surviving at his death. On account of that adjudication, and the consequent impairment of his title, Brannon thereafter, while still in possession of the lot, and before the falling in of the life estate, filed his bill against Mrs. Curtis in the chancery court of Davidson county, alleging her nonresidence, and the breach of her covenant of seisin, and seeking a recovery 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 taxes paid thereon. The bill was taken for confessed against Mrs. Curtis, and thereafter a final decree was rendered against her. This decree allowed Brannon a full recovery for all he claimed, and directed a sale of the property attached, without requiring him to surrender possession, or to account for mesne profits. In January 1896, after the sale of the property attached. and before confirmation, Mrs. Curtis filed the present bill to review the final decree against her, under Brannon's bill, for errors of law alleged to be apparent upon its face, and for newly discovered evidence. Brannon's demurrer to this bill was overruled by the chancellor, who adjudged that the decree impeached was erroneous in law upon its face in three particulars: First, because it allowed the vendee a full recovery of purchase money and interest thereon, without abatement for rents and profits; secondly, because it allowed such recovery without restoring the possession to the vendor; and, thirdly, because it allowed a recovery for improvements without proper

Where suit is brought upon breach of any of the covenants and judgment obtained, and that judgment satisfied, it will have the effect to preclude the vendee from asserting any rights to the property conveyed to him out of the conveyance to which the action arose.

2 Sutherland, Damages, 265; Tucker v. Clarke, 2 Sandf. Ch. 96; Noonan v. Ilsley, 21 Wis. 146; Porter v. Hill, 9 Mass. 36. 6 Am. Dec. 22; Stinson v. Sumner, 9 Mass. 150, 6 Am. Dec. 49; Blanchard v. Ellis, 1 Gray, 202, 61 Am. Dec. 417; Parker v. Brown, 15 N. H. 188.

The covenant of seisin is broken as soon as made, if in fact the vendor did not have a good title.

Ordinarily the measure of damages is the purchase money and interest. The courts modify the rule to suit the facts of any particular case, to the end that the equity of the case may be met. The general statement of the rule has not any reference to improvements which the vendee placed upon the property to the extent that such improvements have permanently enhanced the value of the property.

2 Sutherland, Damages, 285; Morrison v. Underwood, 20 N. H. 369; Hartford & S. Ore Co. v. Miller, 41 Conn. 112, Rawle, Covenants for Title, 236; Staats v. TenEyck, 3 Caines, 111, 2 Am. Dec. 254.

In this case the damage incurred is the direct result of a breach of the contract, and a result which must have been contemplated by the party entering into the covenant.

Mayne, Damages, 2d ed. 147; Dart, Vendors, 4th ed. 726.

The decree is as absolutely binding and conclusive on Mrs. Curtis as if she had been personally served with the process, and had defended.

Caldwell, J., delivered the opinion of the court:

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 495); 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 respects. Both parties have appealed, and in this court complain of such parts of the decree of the court of chancery appeals as are adverse to them, respectively.

3. The recovery of the consideration and interest is subject, however, to abatement for rents during the vendee's possession, when it appears that he cannot be made liable therefor to the owner of the paramount title. A vendee, having enjoyed the advantages of possessi at the expense of his vendor, is bound, especially in a court of equity, to account for those advantages when he demands repayment of the purchase money with interest. He cannot, in such a case, hold benefits, and at the same time recover as if he had not received them. Some of the authorities treat liability for rents as the reason for allowing interest on the consideration paid. Kent says: "The interest is to countervail the claim for mesne profits, to which the grantee is liable." 4 Kent, Com. *475. Sutherland says: "Possession without title may compensate for the interest on the purchase money, if there be no liability, which will be enforced to the real owner." 2 Sutherland, Damages, $ 598. In Flint v. Steadman it was ruled that the vendee, who had been in possession in such manner as not to be accountable for the use of the premises, could recover only the purchase money without interest. 36 Vt. 210. We see no good reason for limiting the vendee's liability for rents to the interest on the purchase money if they have in fact been of greater value. He should account for all the benefits he has derived

1. A covenant of seisin is an assurance to the vendee that the vendor has the very estate, in quantity and quality, which he purports to convey. It is a personal covenant in præsenti, and, if not true, is breached the instant it is made, and an immediate right of action accrues to the vendee for its breach, without and before eviction. These well-settled propositions are announced in the following cases,-partly in some and partly in others, and as many more cases to the same effect could readily be cited: Kincaid v. Brittain, 5 Sneed, 119; Recohs v. Younglove, 8 Baxt. 387; Park v. Cheek, 4 Coldw. 26; Robinson v. Coulter, 90 Tenn. 707, 25 Am. St. Rep. 708, 18 S. W. 250; Baird v. Goodrich, 5 Heisk. 23; Pollard v. Dwight, 4 Cranch, 421, 2 L. ed. 666; Le Roy v. Beard, 8 How. 451, 12 L. ed. 1151; Peters v. Bowman, 98 U. S. 58; 25 L. ed. 91; Logan v. Moulder, 1 Ark. 313, 33 Am. Dec. 338: Baker v. Hunt, 40 Ill. 264, 89 Am. Dec. 346; Clement v. Bank of Rutland (Clement v. National Bank) 61 Vt. 298, 4 L. R. A. 425, 17 Atl. 717; Gilbert v. Bulkley, 5 Conn. 262, 13 Am. Dec. 57; Dale v. Shively, 8 Kan. 276; Real v. Hollister, 20 Neb. 112, 29 N. W. 189; Murphy v. Price, 48 Mo. 247; Bickford 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; Lawrence v. Sutherland, Damages, § 597. "But if Montgomery, 37 Cal. 183. See also 2 Suth some 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 tendering a reconveyance and surrendering possession recovery may be had of the entire consideration [money] and interest, together with taxes paid, less the value of rents received." Id. § 599. This last proposition is based upon the decision in Frazer v. Peoria County, 74 Ill. 282, which goes further than the text, and holds that the

2. If the breach be total, or such that the vendee may so treat it, the measure of damages is, ordinarily, the amount of consideration paid, with interest thereon. Kincaid v. Brittain, 5 Sneed, 119; Park v. Cheek. 4 Coldw. 27; Recohs v. Younglove, 8 Baxt. 387; Logan v. Moulder, 1 Ark. 313, 33 Am. Dec. 344; Bibb v. Freeman, 59 Ala. 612;

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, § 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 & S. Ore Co. v. Miller, Alter, 102 U. S. 79, 26 L. ed. 48; Brown v. 41 Conn. 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 recover 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.


4. Having been in rightful possession under a deed passing a good and perfect title to at least a life estate in the land conveyed, and the life tenant being still alive, so as to preclude the remainder-men from demanding rents for any part of the time. the vendee in the present case was liable to his vendor for the rental value of the premises from the inception of his possession to the date of the decree, and it was an error of law not to reduce the vendee's recovery to that extent.

Never, when adequate relief can be granted to both parties, will it be given to one and withheld from the other. Had Brannon sued at law, the measure of damages would have been the difference between the value of the life estate acquired and the fee contracted for. Recohs v. Younglove, 8 Baxt. 385; 2 Devlin, Deeds, § 901. It is only in a court of equity, and upon the ground of rescission, that he can have the larger recovery. Being in that forum, and seeking relief upon that ground, he must, by the same decree, surrender the possession, and account for mesne profits as well. Asking equity, he must do equity. It has been said, and upon good reason, that a vendee in like situation with Brannon should reconvey or tender a reconveyance before asking a recovery for the breach of a covenant of seisin. Frazer v. Peoria County, 74 Ill. 291; 2 Sutherland, Damages, § 599. Rawle remarks that "it would, perhaps, be a matter of prudence for the purchaser to offer such a reconveyance before or at the time of the trial, although it would be no bar to his action that he had not done so." Rawle, Covenants for Title, § 185. In Mecklem v. Blake the court ruled that a grantee desiring to rescind and recover purchase money and interest must tender a reconveyance, and offer to restore possession. 22 Wis. 495, 99 Am. Dec. 68.

6. At an early period in American jurisprudence it was decided that a vendee suing for a total breach of the covenant of sei in could not augment his recovery by showing a rise in value, whether the enhancement arose from extrinsic causes, as in Staats v. Ten Eyck, 3 Caines, 111f, 2 Am. Dec. 254, or from improvements placed upon the land by him, as in Bender v. Fromberger, 4 Dall. 442, 1 L. ed. 901, and Pitcher v. Livingston, 4 Johns. 1, 4 Am. Dec. 229; and such is the general rule prevailing at this day. 4 Kent, Com. *475; Rawle, Covenants for Title,

5. The original decree was further erroneous in that it allowed the vendee a full recovery for the breach of the covenant of seisin as in case of a total failure in tit'e, or of rescission without at the same time requiring him to surrender possession of the land. It may be true, as suggested by sore of the authorites, that such a recovery will. by operation of law, revest the vendor with such title as he had originally (Kincaid v. Brittain, 5 Sneed, 124; Robinson v. Coulter, 90 Tenn. 709, 25 Am. St. Rep. 708, 18 S. W. 250; Recohs v. Younglove, 8 Baxt. 388; Rawle, Covenants for Title, § 184), and it may likewise be true, as suggested by the learned court of chancery appeals and by the same authorities, that such a recovery even at law, would authorize an action by the vendor to regain possession; but that is not enough in a court of equity. In that forum the vendee will not be allowed a full recovery, except upon the surrender of possession. Restoration of such possession as the vendee has is an indispensable ingredient of the decree. It is one of the things essential to the right of full recovery, and without it the conscience of the court is not moved in his favor. In all matters of rescission, and in all relief akin to rescission, a court of equity will invariably put the parties as nearly in statu quo as possible. Hill v. Harriman, 95 Tenn. 305, 32 S. W.


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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 improvements 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- the rental or usable value of life estate. amount title, with all its enhancement.

Enter decree in accordance with this opinion, and remand for an account, in which Brannon will be credited with (1) purchase money and interest, (2) taxes paid, and (3) improvements, so far as they may have enhanced the rental or usable value of the life estate, and charged with the annual rents or use of the premises in the condition in which they may have been from time to time.

7. But the present case is not the usual one, and the reason for the rule is not entirely applicable. It applies as to the remainder estate, but not as to the life estate. There is no paramount ownership of the life estate. The vendor is actually restored to the possession of the property in its improved condition, and is, undoubtedly, entitled to its free use and enjoyment so long as the life tenant shall survive. Moreover, in the


Peter GERBERT, Exr., etc., of John Snyder | taining a covenant of warranty, and there Deceased, Plff. in Err., had been an ouster by the remainder-men, and the defendant in error had brought an CONGREGATION OF THE SONS OF action for damages growing out of the



breach of the covenant of warranty, it would have been entitled to recover, as damages, only the consideration money named in the deed, together with interest thereon not exceeding six years antecedent to the evicthat the purchase money was wholly unpaid, tion, together with costs; and, in the event it would then have recovered only nominal damages.

(59 N. J. L. 160.)

1. In an action on contract for breach of covenant to convey real estate with warranty of title, where the

vendor's title is defective, nominal damages,

only, can be recovered.


Where there is a contract to convey unimproved land with warranty of title, and the vendee, before conveyance is to be made, erects buildings upon the land without the request of the vendor, in an action on contract to recover damages for failure to convey, the vendor's title proving defective, the value of the buildings cannot be recovered by the vendee.

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Stewart v. Drake, 9 N. J. L. 139; Holmes v. Sinnickson, 15 N. J. L. 313; Morris v. Rowan, 17 N. J. L. 304.

There ought to be, in our own state, a uniformity of doctrine as to the subject of damages where the injury is the same.

Since the decision of Drake v. Baker, 34 N. J. L. 358, the English cases relied on

for that decision have been overruled, and have been declared not to express the law on the subject.

Bain v. Fothergill, L. R. 7 H. L. 158; Rowe v. School Board, L. R. 36 Ch. Div. 619. If the defendant in error was entitled to recover substantial damages for the loss of its bargain, the trial court erred in incost of the improvements put by the lessee cluding therein the sum of $2,632.99, the upon the property. Improvements of the character in question were not removable as between landlord and tenant; but, assuming that they were removable, then, under the facts in this case, no damages can be claimed based upon their value. If they were not removable fixtures, as between landlord and tenant, then the tenant could

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