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Dininny v. Brown

Supreme Court of New York, Appellate Division

January 19, 1912

HENRIETTA L. BROWN, Individually and as Executrix, etc., of WILLIAM L. BROWN, Deceased, Respondent.

APPEAL by the plaintiff, Ferral C. Dininny, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th

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day of June, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the New York Trial Term.


William B. Ellison, for the appellant.

Henry L. Gates, for the respondent.


Plaintiff appeals from a judgment dismissing his complaint. The action is for damages for a breach of a covenant against incumbrances contained in a deed of land in Rockland county, dated November 1, 1899, made by William L. Brown (defendant's testator) and his wife to the plaintiff, for an expressed consideration of $25,000.

The breach charged was: 'That at the time of making and delivery of said deed, the said lands and premises were not free from all incumbrances, but on the contrary were subject to a tax theretofore duly assessed, charged and levied upon said lands and premises by the board of supervisors of the said county of Rockland, and the officers thereof in the sum of One thousand ninety-six and 12/100 dollars ($1,096.12) and which tax was then remaining due and unpaid and was at the time of the delivery of said deed a lien and incumbrance by law upon the said premises.'

'That this plaintiff was obliged to and did pay on the 28th day of February, 1908, the sum of $1,096.12 to extinguish the lien of the tax aforesaid.'

These allegations were denied by the answer, although it was not disputed that plaintiff had paid to the county of Rockland the sum mentioned. The precise issue sought to be raised by defendant was, as stated by the court and now quoted with acquiescence by the defendant, that the taxes were not, and were not shown to be, subsisting valid liens upon the property at the time of the purchase. The plaintiff, after proving the deed from Brown and wife to himself, read in evidence two deeds executed by the county treasurer of the county of Rockland to the supervisors of said county, one dated September 29, 1904, and the other November 1, 1904, and both recorded in the county clerk's office on January 23, 1905. Each of these

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deeds conveys (along with other property) the premises conveyed by Brown and wife to plaintiff. Plaintiff also introduced in evidence a deed of grant, styled letters patent, signed by the county treasurer of the county of Rockland, and therein stated to have been executed pursuant to a resolution of the board of supervisors of the county of Rockland adopted July 11, 1907. This deed purports to grant, release and quitclaim to plaintiff the property conveyed to him by Brown and wife for the consideration of $1,096.12, the payment of which was also proved and not questioned. Each of the deeds from the county treasurer to the supervisors recited chapter 24 of the General Laws of 1896, relating to taxation, and quotes therefrom, and alleged default in the payment of taxes levied in one case prior to 1897, and in the other case prior to 1898; compliance with the requirements of law, sale of the premises and a failure to redeem within the time allowed by law. Then follow words of conveyance of the property. In short, the deeds show that the property in question was sold for two years' taxes levied prior to the date of plaintiff's deed from Brown and wife.

The general principles governing such an action as the present are well settled. The plaintiff's damages are not limited to the amount that may have been due on the property when he purchased it, but what he may have been obliged to pay to relieve his property of the burden. A covenant against incumbrances is treated as a contract of indemnity, and although broken as soon as made, if broken at all, nevertheless a recovery (beyond nominal damages) is confined to the actual loss sustained by the covenantee by reason of the breach. If plaintiff, when he sues, has extinguished the incumbrance, he is entitled to recover the price he has paid for it. ( Delavergne v. Norris, 7 Johns. 358; McGuckin v. Milbank,152 N.Y. 297.) Purchase by the covenantee of an outstanding and superior title is sufficient to justify an action for damages. (Tucker v. Cooney, 34 ...

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