Merchants' Nat. Bank of Clinton v. Otero

Citations

• 24 N.M. 598
• 175 P. 781

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. The covenant of good right to convey is in prsssenti, and, if broken at all, is broken when made. A cause of action thereon does not pass to a subsequent grantee merely by force of the deed of conveyance. P. 601</p> <p>2. The covenant of warranty is a real covenant, running with the land until the same is broken, whereupon a cause of action arises in favor of the convenantee. After breach it has no existence save for the purpose of supporting a right of action for damages on the part of him who held it at the time of the breach. P. 601</p> <p>3. Where a deed is taken in the name of one acting for himself and another, the latter is one of the real parties in interest, and may maintain an action on such deed for breach of warranty and good right to convey, the same as the named grantee may do. P. 603</p> <p>4. The measure of damages on the covenant of warranty, in case of a partial eviction, is such part of the original price as bears the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole tract conveyed. P. 606</p> <p>On Motion for Rehearing.</p> <p>5. The general rule is that the purchase price is the limit of recovery upon breach of a covenant of warranty, whether the breach is total or partial. P. 611</p> <p>6. On breach of warranty the value 'Of the whole estate as compared to the value of the part lost by failure of title is not to be conclusively presumed to be the price fixed by the parties at the time of the conveyance. P. 612</p> <p>7. Under the rule that on breach of a warranty the damages will bear the same proportion to the whole consideration paid as the value of the part to which jjjtle fails hears to the value of the whole tract, the word “value” means actual value and not that fixed by the parties. P. 612</p> <p>8. In an action for breach of a warranty the contention that the price agreed bétween the parties at time of conveyance and recited