Hardin v. Clark

Citations

• 32 S.C. 480
• 11 S.E. 304
• 1890 S.C. LEXIS 75

Syllabus

<p>1. Where an action is instituted for breach of warranty and for subrogation, and the right to subrogation is asserted in the complaint and argued before the Circuit Judge, the failure on the part of the Circuit Judge to consider that question would be error, if this right existed independently of the right to recover on the covenant of warranty; otherwise such failure was not error, after it had been determined that plaintiff could not recover on the covenant of warranty.</p> <p>2. A, the owner of a house and lot on which rested the lien of a judgment, conveyed to B with a covenant of general warranty, B agreeing to pay this judgment and reserving a sufficient amount for the purpose. B made a voluntary conveyance to C without warranty, C to D without warranty, and D to E with warranty, the judgment remaining unpaid, of all which D had notice. This lot being levied upon under this judgment and about to be sold, D paid the judgment off, and then sued upon the breach of the warranty contained in A’s deed to B, and sought to be subrogated to the rights of the judgment creditor to demand payment from the estate of A, who was dead. Held, that before establishing a right to recover for the breach of warranty, D, claiming under B, had no right to demand from A a payment for which A had put money into B’s hands; the right of subrogation, if any, was in A, and his junior judgment creditors. Nor is this right affected by a decree in favor of this judgment creditor against A’s estate, ascertaining a balance of personal assets in hand sufficient to pay this debt. What right of subrogation D would have after establishing his right to recover under the breach of warranty, not considered.</p> <p>3. Neither B, nor his alienees, claiming under him, could recover damages of A for a breach of the warranty against encumbrances, when A had put into B’s hands the funds with which to discharge the only encumbrance that was outstanding.</p> <p>4. Where the action is for breach of warrant