Where a suit was brought for damages sustained by the breach of
a covenant of warranty of title to land in Alabama, and the
plaintiff, in order to establish the existence of an outstanding
paramount title at the date of the conveyance, offered the record
of a suit in ejectment against his grantor, in which suit the
plaintiff himself had been a witness, this record should have been
allowed to be given in evidence without any reservation.
The ruling of the court was therefore erroneous, admitting the
record but referring it to the jury to determine whether the
testimony given by the plaintiff was material, and if so to
disregard the evidence.
In order to show an outstanding title, a copy from the records
of the probate court in Alabama of a deed of trust from the
original owner of the land was offered in evidence, but no evidence
was offered to account for the original. This copy should not have
been admitted.
The deed containing the warranty upon which the suit was
brought, was properly admitted in evidence, being an original deed,
duly acknowledged and recorded.
An instruction to the jury was erroneous -- namely that if the
plaintiff had not lost all the land conveyed to him by the
defendant, then the jury might allow him the average value of the
part lost in proportion to the price paid for the whole. The true
measure of damage was the loss actually sustained by the eviction
from the land for which the title has failed.
Although the deed of warranty was properly made by the grantor
and wife in order to bar her dower, yet an action upon the covenant
of warranty cannot be brought against her. She can make no such
covenants.
Page 58 U. S. 610
The case is stated in the opinion of the Court.
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The defendant recovered a judgment in the district court for
damages sustained by the breach of a covenant of warranty of title
to land in Alabama, contained in a conveyance of the plaintiffs to
him.
To establish the existence of an outstanding paramount title at
the date of the conveyance, the defendant relied upon a judgment
and execution in a suit in ejectment, commenced in Alabama for the
land a few days after the date of the deed, to which the plaintiff
Griffin was a defendant and which resulted in a judgment against
him that was followed by a writ of possession, which is returned
"executed." It appears from the evidence that the defendant was
called by the plaintiff in the ejectment suit as a witness, though
it is not clear to what fact in issue. Objection was made that the
record of the suit could not be used under these circumstances. The
district court admitted the record, but referred it to the jury to
determine whether his testimony was material, and if so to
disregard the evidence.
This ruling is assigned as error. There are authorities to the
point that a record of a verdict and judgment cannot be used in
favor of one who has contributed by his evidence to their recovery,
18 John. 351; 4 Day 431; 2 Hill & Cow. notes 5, and one of the
reasons assigned for confining the use of judgments to the parties
and privies to them is that a stranger may have produced them by
his testimony. But the Court is of opinion that this exception to
the general rule defining the parties by whom the evidence may be
used would introduce an inconvenient collateral inquiry, and that
no practical evil will result from maintaining the general rule
unimpaired, and that it is important that the rules of evidence
should be broad and well defined.
The record in the present suit should have been admitted,
without any reservation.
Blakemore v. Glamorganshire Canal
Co., 2 C. M. & R. 133.
There was some doubt upon the trial whether the issue of the
defendant could be sustained by this evidence, and therefore he
attempted to prove the existence of a paramount title
Page 58 U. S. 611
in the lessors of the plaintiff in the ejectment suit. For this
purpose he proved that the land had belonged to one Oliver, who in
1838 conveyed it to trustees to secure certain liabilities
described in the deed, and that under this deed the property had
been recovered; that the plaintiff's title came from Oliver, by
sheriff's deeds, dated in 1841, and was inferior to that of the
trustees. To prove the deed of trust, he introduced a copy from the
records of the probate court in Alabama, where it had been
recorded, but gave no evidence to account for the original.
At the date of the copy, there was no law in Alabama which
authorized the use of copies in place of and without accounting for
the original, and in relation to deeds of trust, the registry acts
of that state merely required their registration for the purpose of
giving notice, but did not assign any value to the record as
evidence in courts, nor has any statute of Mississippi enlarged the
operation of the statute of Alabama in that state.
Bradford v.
Dawson, 2 Ala. 203; 5
id. 297; 13
id. 370.
We think that this copy should not have been admitted.
The deed from the plaintiff to the defendant, in which the
warranty is contained, is an original and absolute deed, duly
acknowledged and recorded, and the act which authorizes the
acknowledgment also provides that it shall be admitted as evidence
in courts without further proof. Clay's Dig. 161, ยง 1;
Robertson v. Kennedy, 1 Stew. 245.
We think that under the decisions of this Court, this deed was
properly admitted.
Owings v.
Hull, 9 Pet. 607.
The court was requested by the plaintiffs
"to instruct the jury that this is an action for damages, and
that the plaintiff can only recover the value of the part lost, if
a part only was lost at the time of the eviction, in proportion to
the amount he paid,"
which charge was refused, and the jury was instructed
"that if the plaintiff had not lost all the land conveyed to him
by the defendant, then the jury might allow him the average value
of the part lost, in proportion to the price paid for the
whole."
The charge given by the court is erroneous. The measure of
damages is the loss actually sustained by the eviction from the
land for which the title has failed, and that damage would not
usually be ascertained by taking the average value, though the
recovery could not exceed the consideration paid, interest, and
expenses of suit. The joinder of the wife with the husband in this
action is also assigned for error. The statutes of Alabama
authorize the wife to bar her claim to dower by such a conveyance
as this, but do not enlarge her power to enter into personal
engagements or to incur responsibilities for the title.
George
v. Gooldsby, 23 Ala. 327;
Hughes v. Williamson, 21
id. 296.
Page 58 U. S. 612
There is a misjoinder of parties. But this objection is taken
here for the first time, and the difficulty may be obviated by a
nolle prosequi in the district court, which is allowable
under the decisions of this Court.
Minor v.
Bank of Alexandria, 1 Pet. 46;
United
States v. Leffler, 11 Pet. 86;
Amis v.
Smith, 16 Pet. 303.
Judgment reversed and cause remanded.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of Mississippi, and was argued by counsel. On
consideration whereof, it is now here ordered and adjudged by this
Court that the judgment of the said district court in this cause be
and the same is hereby reversed with costs and that this cause be
and the same is hereby remanded to the said district court with
directions to award a
venire facias de novo.