Dobbins v. Brown

1. A covenant of -warranty “ against the grantor and his heirs, and against all and every other person or persons lawfully claiming or to claim,” is not broken by the entry and occupancy of the Commonwealth, in the exercise of its right of eminent domain. Such entry and occupancy do not amount to an eviction of the ground taken for public use. . 2. A release of damages for such entry and occupancy, executed before the conveyance with warranty, is not an eviction. It merely forestalled the compensation, and is a clog on the enjoyment.

Error to the Common Pleas of Erie. Sept. 27. This was an action of covenant brought by Brown and Williams against Dobbins, upon a covenant of warranty in a deed. On the trial the plaintiffs gave in evidence a deed, dated Eebruary 6, 1839, by which Dobbins conveyed to them certain lots, and by which he, as party of the first part, his heirs, executors, and administrators, promised, covenanted, &c., with the grantees, their heirs and assigns, that he and his heirs the premises thereby granted, &c., unto the party of the second part, “ against him and Ms heirs, and against all and every other person or persons whomsoever, lawfully claiming or to claim, shall and will warrant and for ever defend by,these presents.” They also gave in evidence a release executed by the defendant to the Commonwealth, on 2d December, 1829, by wMch, in consideration of the benefit to him from the Pennsylvania Canal passing through the said lots, he agreed, for himself, his heirs and assigns, that the agents of the Commonwealth might enter upon, occupy, use, and keep so much of his land as might be necessary for a canal, &c., and released all claims for damages for land so taken, &c. They then proved that in 1840, the Erie Extension Canal was laid out and constructed, notwithstanding the prohibition of the plaintiffs to the contractor, across the said lots, occupying nearly one-third of their surface. The defendant then called many witnesses to prove that the value of the lots was enhanced by the canal passing over them, and that the residue of them was worth more than the whole would have been worth without the canal. He also put in a patent from the Commonwealth, dated 80th January, 1839, to Mmself for these lots, with the usual recital of being clear of all restrictions and reservations. The plaintiffs’ rebutting evidence went to the effect that the lots would have been much more valuable without, than with the release. The plaintiffs then requested the Court to' charge the jury that the evidence of the defence was irrelevant and to be entirely disregarded ; secondly, as to the measure of damages, and thirdly, that the release to the Commonwealth having been given prior to the covenant of warranty in the deed to* the plaintiffs, the latter was broken at the time it was given, and therefore the plaintiffs were ■ entitled to some damages. The defendant requested the Court to charge— 1. That the release is void for uncertainty, so far as it respects the defendant’s estate in the lots conveyed to plaintiffs. 2. That if the said release conveyed to the Commonwealth any estate in the lots sold by defendant to plaintiffs, the patent in evidence from the Commonwealth to the defendant conveyed all such estate back again to defendant for plaintiffs’ use, and the whole estate in the lots in question was therefore vested in the plaintiffs before the construction of the canal over them in 1840. ‘ The Court below (Church, President) charged as follows: “ The whole case resolves itself into two questions: The right of recovery, and the rule or measure of damages. “ In the ordinary case of action on a warranty, after eviction, the measure of damages becomes a matter of law, and is the purchase-money paid, with interest, not from the time paid, but from ‘time of eviction. So in case of a partial eviction, damages fro rata are recoverable, the price paid being the data of the value. There may be cases, undoubtedly, where a partial eviction would be equivalent in this respect to a total one, and so treated. These are general principles. “ The price here paid for the four lots was twelve thousand five hundred dollars. This purchase-money has been all paid, and this amount is the actual value of the lots so far as is material for us. The alleged breach of warranty is the eviction by the Commonwealth, under a prior authority or license given by defendant. This eviction, it seems, is but a partial one, in point of fact, thus far. Was this eviction to the prejudice of plaintiffs, and one warranted against by defendant ? Certainly, but not absolutely and without qualification. “ It is true the Commonwealth have the right exercised, under certain conditions, provided for in the constitution (§ X., Bill of Rights); for without it makes just compensation, it is not easy to find in it even any other rights than has any private citizen, except it be that it may exercise the right, and then make compensation; whereas a private citizen must precede it with the compensation and the consent of the owner. The consent may be already considered as given to the Commonwealth by every citizen owning property, yet it must be understood upon the express stipulations of the constitution. That right itself may be considered inherent in the government; so is the right to compensation in the citizen. This general warranty in the deed is not broken by the mere exercise of this right on the part of the Commonwealth. But then this right of the citizen to require damages, or compensation therefor, is so complete and extensive that it cannot be abridged by statute. The right is reserved to the citizen by the constitution, and there is no legislative authority to take it away or diminish it. This right then is warranted to plaintiffs by this deed. And if this right was released or conveyed, and so destroyed by the warrantor prior to his warranty to plaintiffs, it is very clear that upon the eviction under it the covenant is broken, and the warrantee or covenantee is entitled to recover from his warrantor. This is most certainly right and just, and nothing more. Upon this principle we charge you the plaintiffs are entitled to recover, if such a state of facts is shown. “Now let u's see what appears in this case: Defendant conveys to plaintiffs certain lots for a certain consideration j>aid. He warrants and defends all that his deed purports to convey. That includes this right to recover damages or compensation from the Commonwealth in case it takes it for public use. Before this conveyance, however, defendant for a consideration granted the right exercised to the Commonwealth, and relinquished all his right to demand compensation, He has thus sold to plaintiffs and been paid for, and warranted and covenanted to defend, what he did not own. These facts thus appearing in the testimony, the Court charge you plaintiffs are entitled to recover.” (The Court then instructed the jury upon the measure of damages, and proceeded to answer the points.) The third point of plaintiffs was answered in the affirmative; and the first and second of the defendant in the negative. The verdict was in favour of plaintiffs for $4812.50, on which, a new trial having been moved for and refused, judgment was entered. In this Court the following assignment of errors was made: 1. The answer to the defendant’s first point. 2. The answer to the defendant’s second point. 3. 4, 5. The answer and charge respecting the measure of damages.