Norton v. Jackson

Heydenfeldt, J., delivered the opinion of the Court. Bryan, J., and Murray, C. J., concurred.

Where land is sold with covenant of warranty, accompanied with a delivery of possession, for which the purchaser gives a note for the purchase money, the promise to pay, and the warranty, are independent covenants, and the enforcement of the one, is not dependent upon the performance of the other.

It has therefore been held by all sound decisions, that an action upon the covenant of warranty would not lie until eviction. The reason of this principle is founded upon the position, that there can be no approximation to a correct measure of damages. It would be a serious hardship to allow the grantee to defeat the recovery of the purchase money and interest, while he remains in the enjoyment of the possession, has derived its rents and profits probably for many years, and may hold until his possession ripens into a perfect title. See Backus, Administrator, v. McCoy, 3 Ohio, 211, and the cases cited in appellant’s brief.

In Dunn v. White & McCurdy, 1 Ala. R., 645, the question was whether the vendee should be allowed to reduce the recovery of the purchase money.

The Court decide that there is no right to reduce the amount of the purchase money on account of relieving an incumbrance where there is a covenant of warranty. They say “not only is there a security of a higher nature, but it would involve the jury in the investigation of matters foreign to the question before them, or not proper for their investigation. Thus, if the defendant seeks to reduce the amount of a note given for the purchase of land, either in whole or in part, by proving that lie had paid off an outstanding incumbrance, it would certainly be open to the plaintiff to show that he was not bound to discharge the incumbrance, from some illegality in the consideration, or that he had himself discharged it. Such an inquiry might involve an examination of intricate accounts between the plaintiff and the incumbrancer, such as a Court of Equity could alone with propriety adjust. See Miller v. Watson, 5 Cowen, 195. Bumpus v. Platner, Ch. R.; 1 Johns., 213. Young v. Triplett, 5 Littell R., 247. Clay et al v. Dennis, 3 Ala. R., 375.

[265]In Cullum v. The Bank of Ala., 3 A. R., 21, the doctrine is, t-hat although the vendor has no title, yet if the purchaser received the possession, and carried the contract into execution, by taking upon himself the ownership of the laud, the payment of the purchase money cannot be resisted. See also Sharke v. Hill, 6 Ala., 785. Wade v. Kelbough, 3 Stew. & P., 431. Mason v. Chambers, 4 Lit., 252. Clemens v. Loggin, 1 Ala., 622.