may recover the value of the land at the time payment should have been made, with interest.18 So, the value of an elevator and its connections, where the vendor's title has failed, is recoverable,19 as is the value of the land subject to incumbrances, or the value of the equity of redemption, upon failure, after demand, to deliver a bond covenanted to be given for a quitclaim deed. So the rule, that where there is an express agreement, open and unrescinded, the value of the thing to be given or the act to be done, at the time and place when and where it was to be given or done, and not the consideration money, constitutes the measure of damages, has been applied to agreements to convey land." And if such an agreement is part of the consideration for the sale of chattels, the cause of action is not for such balance due on the chattel, but on the contract to convey the land, and the measure of damages is the value of the land." § 1742. Vendor's breach of contract-Value of land-Continued-Interest.-Interest is also recoverable," and has been allowed from the time the contract should have been performed," from the time of the breach, to the time of the trial, or to the time of filing the bill in equity; and the allowance has been made where the consideration has been paid. 25 28 26 § 1743. Vendor's breach of contract-Time at which value of land should be computed." —The time at which the value 18 Bonnin's Est. v. Urton, 3 Iowa, | 692, holding that the jury might, per228. haps, have allowed interest by way Dun 19 Confederation L. Assn. v. La- of enhancing the damages. batt, 27 Ont. App. 321. 20 Stevenson v. Fuller, 75 Me. 324. 21 Wells v. Abernethy, 5 Conn. 222. 22 Rutan v. Hopper, 29 N. J. L. 112. 23 Brinckerhoff v. Phelps, 24 Barb. (N. Y.) 100; 43 id. 469; 40 N. Y. 59; Boyd v. Vanderkempt, 1 Barb. Ch. (N. Y.) 273 (a suit in equity); Burr v. Todd, 41 Pa. St. 206; Cox v. Henry, 32 Pa. St. 18; Barbour v. Nichols, 3 R. I. 187. See Shaw v. Wilkins, 8 Humph. (Tenn.) 647; 49 Am. Dec. can v. Turner, 2 J. J. Marsh. (Ky.) 27 Boyd v. Vanderkempt, 1 Barb. Ch. (N. Y.) 273. 28 Burr v. Todd, 41 Pa. St. 206. 29 See secs. 1729, 1730, 1737-1741, 1747, 1749, 1750, 1754, 1755, 1758 herein. 31 32 30 33 37 36 35 of the land should be computed has been fixed as at the time of the breach, as above stated; or at such time, in a suit on a bond for title; or, in such an action, at the time when the title should have been made; or at the time it should have been conveyed under a bond for conveyance; or its value at such time, with interest to the time of trial, where the bond is that a third person shall convey title; or at the time the conveyance should have been made, in case of failure to convey; or at the time when the deed should have been executed, or if the value has not changed, then the value thereof when the deed was to have been made, with interest to the time of trial; or its value at such time, where the vendor had no title and subsequently acquired one and conveyed it to another; or at said time if such value exceeds the consideration paid, where the failure occurs through the vendor's fault; or, in equity, its value at said time, where the vendor disables himself by parting with the title or where he has a title and refuses to convey; or its value at the time of sale, where there is a failure to convey, but a different rule prevails where there is fraud by the vendor; or at the time of sale, where the breach has occurred without fraud of the vendor, but if he has been guilty of fraud, then the rule is the value of the land at the time the covenant should have been performed;" or its value at the time the vendor voluntarily puts it out of his power to complete the contract, where the suit is for specific performance or damages; or at the time of a sale to another on breach of the contract to convey; or at the date of delivery where the deed is wrongfully delivered and the land is not recoverable; or at the time of 40 43 80 See sec. 1737 herein. 38 42 39 38 Yokom v. McBride, 56 Iowa, 139; 81 Whiteside v. Jennings, 19 Ala. 8 N. W. 795. 754. 82 Bryant v. Humbrick, 9 Ga. 133. 33 Russell v. Copeland, 30 Me. 332. 34 Pinkston v. Huie, 9 Ala. 252. 35 Plummer v. Rigdon, 78 Ill. 222. See Boardman v. Keeler, 21 Vt. 77. 86 Combs v. Scott (Wis.), 45 N. W. 532. 87 Graham v. Hackwith, 1 A. K. Marsh. (Ky.) 423. 89 Dustin v. Newcomer, 8 Ohio, 49. 40 Rutledge v. Lawrence, 1 A. K. Marsh. (Ky.) 396. See sec. 1733, et seq. herein. 41 Goff v. Hawks, 5 J. J. Marsh. (Ky.) 341. 42 Phillips v. Harndon, 78 Tex. 378; 14 S. W. 857. 43 Mitchell v. Simons (Tex. Civ. App. 1899), 53 S. W. 76. 44 Triggs v. Jones (Minn.), 48 N. W. 1113. demand, with interest from date, where the agreed payments have been made.45 § 1744. Vendor's breach of contract-Substantial damages -Increased value of land. If the person selling is in fault and knew, or should have known, that he could not comply, or having the title refuses to convey, or having the title places it out of his power to convey by conveying to a third person, or at the time of the agreement knew he had no title, in these and in all cases where inability arises from fraud, substantial damages are recoverable, including compensation for actual loss by the increased value of the land at the time the contract should have been performed. 46 § 1745. Vendor's breach of contract—Inability caused by legal proceedings-Equity. Where the vendor was willing to perform her contract of sale, and the cause of her inability was not of her creating but grew out of an adverse claim to the land and legal proceedings, the rule was applied that equity will place the parties as far as possible in the same situation as they would have been had the contract been performed according to its terms, and to that end, will regard the vendor as trustee of the land for the benefit of the purchaser, and liable to account to him for the rents and profits, and will treat the vendee as trustee of so much of the money as has not been paid, charging him with interest thereon. The vendee is also chargeable with the taxes and assessments, accruing upon the property from the date upon which the sale would have been consummated, and the defendant, having been obligated to pay the same promptly as trustee, interest on said payments will be recoverable, but having failed in this duty defendant will be chargeable with all accrued penalties for nonpayment, over and above legal interest, from the last day on which each tax or assessment might have been paid without the imposition of a penalty. Defendant will also be charged with the fair rental value of the property from the date 45 Sanderson v. Reed, 75 Ill. App. | 355. As to recovery in cases of fraud 190. 45a See secs. 1729, 1730 herein. 46 Foley v. McKeegan, 4 Iowa, 1, followed in Sweem v. Steele, 5 Iowa, or false representations inducing the sale, see ch. 79, post, herein, on Fraud and Deceit. on which the sale should have been completed, with interest on each year's rental, and such value is not necessarily measured by the actual rentals received. It is also defendant's duty, as trustee in such case, to suffer nothing to be done which would lessen the value of the property, but it is also defendant's duty to comply with all lawful orders of the municipal authorities, and if such compliance results in a depreciation of value, she should not be chargeable therewith." 48 § 1746. Vendor's breach by reason of sheriff's sale—Sale under judgment.-Losses not chargeable to the vendor's refusal to give a deed, or agreement for sale, are not recoverable where the purchaser, under a parol agreement, with the vendor's consent, entered and made improvements, and the vendor's equitable interest was sold by the sheriff on a claim against him, and within this rule will be excluded the difference between the loss of a house and the insurance money received after its destruction, also the amount paid to an absconding contractor for building a new house and also the earnest money paid the vendor when the original contract was made. Again, where plaintiff was to convey land by special warranty deed to defendant and there was a judgment foreclosing a vendor's lien thereon rendered against the plaintiff, which he failed to pay, and the land was sold, and the defendant, under an agreed judgment, was required to protect the plaintiff as to all except said judgment against the latter, only the amount agreed upon and which the plaintiff had failed to pay, and not the entire value of the land can be recovered against the plaintiff if the defendant could himself by any reasonable means within his power have paid such amount prior to the sale. 49 § 1747. Agreement to procure or perfect title.-Where one agrees to procure a title to land owned by a third party, the measure of indemnity will be the consideration paid with interest from the date of the payment, in case said party is un 47 Haffey v. Lynch, 77 N. Y. Supp. 587; 58 Misc. Rep. 256. See 61 N. Y. Supp. 736. 150. As to improvements, see secs. 1778-1780 herein. 49 Parker v. Landsay (Tex. Civ. 48 Ballas v. Wolff, 11 Pa. Super. Ct. App. ), 37 S. W. 482. 51 If able without fault or fraud on his part to procure such title.50 It is also decided that the sum which it would be necessary to pay to secure the title is the proper measure of recovery, and that the unpaid purchase money should be deducted. Again, the amount paid to procure said title, with interest thereon, may be recovered. So the damages may be admeasured by the value of the land at the time the person for whom the title was to be obtained was notified that it could not be procured. there is an undertaking on the part of the vendor to perfect the title to land which he has sold, and there is an eviction, the value of the land at that time constitutes the compensation." It is also determined that the proper measure of damages upon a bond, conditioned that a third person shall convey title, is the value of that title at the time it was to be conveyed, with interest on that value to the time of trial. But the damages should be merely nominal, where the title was obtained and the expense and trouble of obtaining it, which were recoverable, were satisfied, where one binds himself to the vendee, who knew that the title was outstanding in another, to deliver a fee simple title to the lands at the time agreed upon for the payment of the price, the said party being unable to procure said title although he instituted proceedings therefor and coerced the payment of the purchase price by the vendee. 55 56 57 § 1748. Vendor's agreement to indemnify in case of failure of title. If other lands of equal value are to be rendered in case the land sold should be taken under a better claim, the compensation will be based upon the value of the land sold. Although it is also decided that under a contract that other lands might be taken at a specified price per foot to make the agreed upon price in case the vendor could not make a good title, the damages in case of a breach were those which the parties had thus fixed. If, however, the indemnity stipulated is for an increase in value in case of failure of title, and the 58 50 Sawyer v. Warner, 36 Iowa, 333. See secs. 1729, 1730 herein. 61 Dyer v. Dorsey, 1 Gill & J. (Md.) 440. 52 Beard v. Delaney, 35 Iowa, 16. 63 Gale v. Dean, 20 Ill. 320. 64 Taylor v. Barnes, 69 N. Y. 430. 55 Pinkston v. Huie, 9 Ala. 252. 66 Gibbs v. Jemison, 12 Ala. 820. 57 Davis v. Hall, 2 Bibb (Ky.), 590. 58 Haralson v. McGavock, 10 Lea (Tenn.), 719. |