Hacker v. Blake

Worden, J.

Action by the appellant, against the appel lees. Demurrer to the complaint sustained,' and final judgment for the appellees. The plaintiff appeals, and brings in review the decision upon the demurrer. The substance of the case made by the complaint, is as follows:

In the lifetime of William G. Butcher, deceased, the plaintiff purchased of him certain lands, in the complaint described, and took a conveyance therefor, with covenants of seizin and warranty; and, at the same time, executed to the deceased a mortgage to secure the purchase money. The plaintiff took, and retains, possession of the premises. After the death of Butcher, his administrators filed a complaint in the proper Court, and obtained a judgment, foreclosing the mortgage, and directing a sale of the premises. An execution had been issued on the judgment, and levied upon the premi ses, which were about to be sold by virtue thereof. After the judgment, the xrlaintiff discovered that the deceased had no title whatever to a portion of the lands, he having purchased the same at a sheriff’s sale, upon an execution issued upon a void judgment. Prayer, that proceedings on the execution be stayed; that a new trial maybe had in the foreclosure suit, and the plaintiff permitted to make defense, and for other relief.

Passing by any questions of negligence, or diligence, in not discovering the defect in the title until after the judgment of foreclosure, we may treat the case as if the facts were pleaded in defense of that suit, or as if the plaintiff had brought an original suit upon the covenants in his deed The plaintiff has not been evicted, but retains possession, and also the deed. In Small v. Reeves, 14 Ind. 164 , it was held that “where a deed is made and accepted, and possession taken under it, want of title will not -enable tbe *99 purchaser to resist the payment of the purchase money, or recover more than nominal damages on Ms covenants, while he retains the deed, and possession, and has been subjected to no inconvemence or expense, on account of the defect of title. This is, in many of the cases, because the purchaser’s possession, being under the color of title, may continue undisturbed for twenty years, and thus become perfect, and he be uninjured. And he may rely on the covenants in Ms deed for redress, if injury occurs.” The complaint, tested by the rules of law, as thus expounded, is clearly bad. Vide, also, Laughery v. McLean, id. 106. The entire want of title was a breach of the covenant of seizin, but for such breach, wMle the purchaser retains possession, he can only recover nominal damages; and for such damages, a judgment will not be reversed. Tate v. Booe et al., 9 Ind. 13 .

J. A. Matson and James A. Scott, for the appellant.. H. Secrest and S. Turm,an, for the appellees.

Per Curiam — The judgment below is affirmed, with, costs.