Croom v. Allen , 145 Ga. 347 ( 1916 )

Atkinson, J.

1. The plaintiff was the immediate grantee of O’Shields, and the remote grantee of Allen. The deed executed by Allen contained a covenant of general warranty as to title, which did not express any restriction as to transmission to subsequent purchasers. The deed from O’Shields to the plaintiff transmitted the covenant of warranty expressed in- the deed from Allen to O’Shields. Civil Code, §§ 4136, 4192, 4194; Tucker v. McArthur, 103 Ga. 409 (30 S. E. 283). The inability of the plaintiff to take possession of a part of the land embraced in the deed from Allen to O’Shields and from O’Shields to the plaintiff, on account of the prior possession of the Georgia Eailway & Electric Company under an older deed from Allen, was sufficient to show a breach of the covenant of warranty expressed in the deed executed by Allen. The evidence was sufficient to show that the plaintiff was authorized to sue the defendant for damages from a breach of his covenant of warranty.

2. The plaintiff lost a part of his land and sustained damages as a consequence. Eor indemnity he had recourse to the defendant’s covenant of warranty expressed in the deed from the defendant to O’Shields. There was no question of valuable improvements or expense incurred by the plaintiff in complying with the contract. And the amount of the defendant’s liability would be the contract price received for the property so lost, with interest from the date of sale. Civil Code, §§ 4400, 4402. The damages were claimed upon the basis of an apportionment, and .the amount sought to be recovered was not for the whole properly, but merely that part which the plaintiff had lost. There was no evidence to show the price the defendant received for the whole property, nor data from which to estimate the price he received for the part of the land which plaintiff lost. On this subject the evidence was merely that the consideration received by the defendant was, as expressed in the deed, “an even exchange of real estate,” which defendant granted in exchange. The land received was not identified, nor was its value made to appear in any manner. Under these circumstances the evidence was insufficient to sustain a verdict for actual damages. But this would not authorize the judge to grant a nonsuit. The plaintiff, upon proving the covenant of warranty and its breach and his right to sue thereon, was entitled to nominal damages. Irwin v. Askew, 74 Ga. 581 (2); Roberts v. Glass, 112 Ga. 456 (37 S. E. 704); Bloom v. Americus Grocery Co., 116 Ga. 784 (2-3), 787 (43 S. E. 54).

Judgment reversed.

All the Justices concur.