
    CASE 52. — ACTION BY LOUISVILLE PUBLIC WAREHOUSE CO. AGAINST JAMES.
    March 29, 1900.
    Louisville Public Warehouse Co. v. James.
    Appeal from Jefferson Circuit Court (Common Pleas Division).
    Judgment for defendant, and plaintiff appeals.—
    Reversed.
    1. Vendor and Purchaser — Breach of Warranty — Eiviation— Measure of Damages. — The purchaser may recover' damages for a breach of the covenant of warranty, where a strip of land has been taken as part of -a ¡street, though under a judgment rendered in an -action brought by him, -and not against him, especially .as the action was brought by him on the -advice! of the vendor's attorneys, and they appeared and ¡assisted in ¡the argument on hi® behalf.
    2. The fact that there had been a former judgment in favor ■of the vendor in an -action between him and the city as to ■the strip of ground in -controversy, constitutes no defense to the action for breach of warranty, as that judgment was pleaded, in the acti-o-n brought by the purchaser -against the -city; and if there were other facts -tending to show that the judgment was -a biar to -the city’s claim, -they should' have been proved by -th-e vendor when notified -by th-e purchaser to protect -his title.
    3. Where -the successful claimant -entered upon the land, and ¡thus forced the purchaser to bring an acti-o-n to test his ¡title, the purchaser ¡may recover th-e -costs -of that action, including -a reasonable -atto-rn-ey’-s fee in -an -action, on the covenant of w-arranty, as if he had been evicted in an action brought against him, ¡especially when- he brought 'the action to .test hi-s title ou advice of the vendor’s attorneys.
    
      4. The purchaser cannot recover -the -co-sits -of -an unsuccessful appeal from the judgment under which he was- -evicted where ■the appeal was not taken at the vendor's request.
    5. Where a strip, 30 feet wid-e, was taken from the front of the lot purchased, in opening -a -street, the jury 'should have been instructed, in -an ¡action -by the purchaser an the vendor’s covenant of warranty, that, -they should. -consider the entire tract, including the -strip taken, to be o-f value of $4,500, the consideration paid, and disregarding all enhancement of the property from the widening of the -street, ■should determine from the evidence how much less the remainder of th-e tract, after the -strip taken had b-een opened as a -street, w-ais worth, than -the whole tract was worth, including the -strip-, and without the street being opened, this difference, with interest from the time the city took possession, being the proper measure of recovery.
    HELM, BRUCE & HELM for appellant.
    JOHN ROBERTS for appellee.
   Opinion op the Court by

Judge Hobson

Reversing.

On May 4, 1887, appellant sold and conveyed, by deed with general warranty, to appellee, in consideration of $4,500,-5 7-12 acres of land in tbe suburbs of tbe city of Louisville. Tbe city claimed that a strip of this land, lying on one side of it, 30 feet wide and 549 feet long, was a part of Payne street, and entered upon tbe land for tbe purpose of opening and constructing tbe street over this strip. Appellee then consulted appellant, or its attorneys, and was advised that in a suit between appellant and tbe city a judgment bad been recovered in appellant’s favor as to its right to this strip of land, and that this judgment was conclusive of tbe rights of tbe parties. Appellee then filed a suit against tbe city to stop it from encroaching upon him; pleading tbe adjudication theretofore bad between bis vendor and tbe city, above referred to. On demurrer, tbe circuit court held that this judgment was not a bar, for reasons that need not now be stated. Appellee thereupon, in writing, notified appellant to protect the title it bad made him; and its counsel then appeared in that action and re-argued the question of former adjudication, but the court adhered to its former ruling, and on final hearing the strip in controversy was adjudged to be the property of the city, by reason of a dedication as a street many years before the conveyance to appellee. He then brought this action against the appellant, his vendor, to recover on the warranty damages for the loss of the land: and the cost of the litigation with the city, incurred by him.

The first question made is that the action does not lie, because the judgment determining that the strip was a part of the city’s street was not rendered in a suit against appellee, but in a suit brought by him. We are referred to the case of Ferrell v. Alder, 8 Humph. 44, as sustaining the rule that a judgment against a vendee in an action brought by him will not sustain an action by him on the covenant of warranty; but the distinction seems to us to rest on no solid basis. When the city in this case entered upon the land, all .that appellee could do was either to submit, or bring suit against it. The evidence in the ease supports the conclusion that the suit was filed by him on the advice of appellant’s attorneys, and that they afterwards appeared in the action and assisted in the argument on behalf of appellant. Under such circumstances, appellant cannot be heard to say that the action should not have been brought, or that the judgment rendered therein is not conclusive upon it as well as appellee. For the same reason, the previous judgment in the suit between appellant and the city is unavailing. That judgment was pleaded on the suit between appellee and the pity, and, as he has been evicted of the land by the judgment rendered in the last case, he may recover upon his warranty, although, it might he that, if other proof had been made in the last action, the first judgment might have been held a bar to the rights asserted by the city in the last ease. It was incumbent on appellant when notified thereto by appellee, to present in that case all the proof it had to prevent a judgment in favor of the city; and, if it failed to do this, the matter cannot be relitigated in this action.

The jury returned a verdict in favor of appellee for $850, with interest from May 1, 1892, the date at which the strip was entered upon and taken possession of by the city. Both appellant and appellee file grounds for a new trial, both excepted to the refusal of the court to grant a new trial, and both in this court insist upon a reversal of the judgment on the ground that the jury was not properly instructed as to the measure of damages.

The court refused the instructions askpd by appellee to the effect that the jury should allow him his costs and reasonable counsel fees in the suit with the city, hetth in the lower court and on appeal which he took in that case to this court. It is insisted for appellant that this was proper, because costs and attorney’s fees are only allowed where the vendee is the defendant in the action, and the cost is incurred in defense of the title. But where the successful claimant of the property enters upon and takes possession of it, and the vendee is forced to bring an action to test the title, we see no reason why the same rule should not be applied as where he remains in possession, and the suit is brought against him. Especially should this be so where the suit was brought after consultation with the representatives of the vendor, and at their instance. The appellant, therefore, should have been allowed to recover his costs, including a reasonable attorney’s fee in the circuit court, in tlie suit with the city. But it does not follow that he should be allowed the costs of the appeal. Pie was not required to take an appeal before bringing an action upon the warranty, and it does not appear that the appeal was taken at the request of appellant. It may be that it wpuld have preferred that an appeal should not be taken, or, if taken, that it should be conducted by its own counsel. The reasons for allowing the .costs in the circuit court in the suit to determine the title do not apply to an appeal from the judgment in that case to this court, and no part of the costs of the appeal can be recovered by appellee in this action.

The most difficult question in the case is the proper measure of damages for the strip of 30 feet taken by the city for its street. This strip, estimated at the price for the entire property, would amount to about ¿300, The court instructed the jury that they should find for appellee such a sum as would fairly and reasonably represent the value of this strip to appellee, considered with reference to his entire tract, treating the whole as being worth $4,500. There was evidence that the front of city property is worth much more than the rear of it, and the jury, in fixing the value of the strip at $850, seem largely to have acted on this idea. This would be true if the strip in question had been taken for any other purpose than a street, but the taking of. this strip has only had the effect of making appellee’s lots fronting on the street not as deep, by 30 feet, as' they would other-w'is.e have been. He has not lost the title to the strip. The underground rights which may be exercised without interfering with the easement of the city to use the strip for street purposes still belongs to appellee. If this easement should be abandoned, the title will revert to him; and he, in common with all others, has a right to use the street in front of him. On one hand, his lots fronting on the street will lack 30 feet of being as deep as they were; on the other the street in front of him, instead of being 30 feet wide, is 60 feet wide, and so much more valuable for ingress and egress. The object of a covenant of warranty is to make whole the vendee in case of loss. Compensation for what he actually loses is all that should be recovered on it. Under all the circumstances in this case, the jury should have been instructed that they should consider the entire tract, including the strip of 30 feet, to be of value of $4,500, and, disregarding all enhancement of the property from the widening of the street, should determine from the evidence how much -less the remainder of the tract, after the strip of 30 feet had been opened as a street was worth, than the whole tract was worth, including the strip, and without the street being opened over it. This difference, with interest from the time the city took possession of the strip, was the proper measure of recovery.

Judgment reversed on original and cross-appeals, and cause remanded for further proceedings not inconsistent with this opinion.  