Andrus v. St. Louis Smelting & Refining Co., 130 U.S. 643 (1889)

130 U.S.
643
9 S.Ct. 645
32 L.Ed. 1054
ANDRUS
v.
ST. LOUIS SMELTING & REFINING CO.
May 13, 1889.
[Statement of Case from pages 643-645 intentionally omitted]

T. A. Green, for plaintiff in error.
Dcharles E. Gast, for defendant in error.
Mr. Justice FIELD, after stating the facts as above, delivered the opinion
of the court.
As appears by the above statement, the gist of the action is the alleged deceit
practiced upon the plaintiff by the agents, attorneys, and officers of the
company to induce him to purchase from it a lot in Leadville, by representing
that it had obtained a release of the right of all claimants to the land, and could
put him into immediate possession; whereas, upon attempting to enter upon the
land purchased he found another in possession, who refused to surrender it, and
thus he was kept out of possession from the time of his purchase, March 27,
1879, to February 22, 1883, during which period he lost its rental value.
To this ground of complaint there are two obvious answers. In the first place,
the plaintiff could have required the delivery of the possession of the land to
accompany the payment of the money. The lot, being in the town, might have
been readily reached, when the ability of the company to give possession could
have been at once determined. The plaintiff alleges that he used all diligence in
his power to find out whether the representations of the officers, agents, and
attorneys of the company were true or false, but the inspection of the premises,
the most natural and obvious mode of ascertaining whether they were occupied
by another, does not seem to have been resorted to. The law does not afford
relief to one who suffers by not using the ordinary means of information,
whether his neglect be attributable to indifference or credulity, nor will
industrious activity in other directions, to the neglect of such means, be of any

avail. Besides, it does not appear at what time the party in possession entered
upon the land. The complaint only alleges that whenthe time not being stated
the plaintiff attempted to take possession, he found another person there,
who, for aught that appears, may have gone on the land after the execution and
delivery of the deed. There was at the time, according to the allegations of the
complaint, a great struggle to obtain possession of lots among the crowd of
persons pressing to the town owing to the report of rich gold discoveries within
its immediate neighborhood. The claim of right to the land advanced by the
occupant was founded only upon her alleged prior possession of it as a part of
the public domain of the United States, a claim which would seem, from the
result of the ejectment suit against her brought by the company, to have been
entirely worthless. The complaint alleges that the defendant represented that it
had received a patent from the government of the United States for the
premises, as well as for a large number of other lots in the town, and contains
no averment that this representation was untrue. It may therefore be fairly
presumed that, upon the title thus conferred, the company subsequently evicted
the intruder. The possession of a patent of the United States would have
justified all the representations alleged, as to title and right of possession, and
the purchaser might have called for an inspection of that document, if doubtful
of the statements of the agents and officers of the vendor.
3
In the second place, the covenant in the deed for quiet possession merged all
previous representations as to the possession, and limited the liability growing
out of them. Those representations were to a great extent, if not entirely, mere
expressions of confidence in the company's title, and the right of possession
which followed it, against all intruders. The covenant was an affirmance of
those statements in a form admitting of no misunderstanding. It was the
ultimate assurance given upon which the plaintiff could rely, a guaranty against
disturbance by a superior title. That covenant has not been broken. It is a
covenant against disturbance by 'persons lawfully claiming' the premises or any
part thereof. If the occupant holds by a paramount title, and thus lawfully
excludes the purchaser from possession, the covenant is broken. But it is not
broken by a tortious disturbance. If the occupation is without right, the remedy
of the purchaser is to dispossess the iutruder. His occupation does not constitute
a breach of the covenant. Beebe v. Swartwout, 3 Gilman, 162, 179; Kelly v.
Dutch Church of Schenectady, 2 Hill, 105, 111. False and fraudulent
representations upon the sale of real property may undoubtedly be ground for
an action for damages, when the representations relate to some matter collateral
to the title of the property, and the right of possession which follows its
acquisition, such as the location, quantity, quality, and condition of the land, the
privileges connected with it, or the rents and profits derived therefrom. Lysney
v. Selby, 2 Ld. Raym. 1118; Dobell v. Stevens, 3 Barn. & C. 623; Monell v.
Colden, 13 Johns. 396; Sandford v. Handy, 23 Wend. 260; Van Epps v.
Harrison, 5 Hill, 63. Such representations by the vendor as to his having title to
the premises sold may also be the ground of action where he is not in
possession, and has neither color nor claim of title under any instrument
purporting to convey the premises, or any judgment establishing his right to
them. Thus, in Wardell v. Fosdick, 13 Johns. 325, an action for deceit was
sustained against the vendor of land which had no actual existence, the court
holding that in such case the purchaser might treat the deed as a nullity. The
land not being in existence, there could be no possession, and of course no
eviction, and consequently no remedy upon the covenants; and the purchaser
would be remediless if he could not maintain the action. But where the vendor,
holding in good faith under an instrument purporting to transfer the premises to
him, or under a judicial determination of a claim to them in his favor, executes
a conveyance to the purchaser, with a warranty of title and a covenant for
peaceable possession, his previous representations as to the validity of his title,
or the right of possession which it gives, are regarded, however highly colored,
as mere expressions of confidence in his title, and are merged in the warranty
and covenant, which determine the extent of his liability. Judgment affirmed.

Andrus v. St. Louis Smelting & Refining Co., 130 U.S. 643 (1889)

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130 U.S.

[Statement of Case from pages 643-645 intentionally omitted]

industrious activity in other directions, to the neglect of such means, be of any

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