2 S.W. 142 (Mo. 1886), Allen v. Kennedy

Citation:2 S.W. 142, 91 Mo. 324
Opinion Judge:Black, J.
Party Name:Allen v. Kennedy, Appellant
Attorney:Waters & Wyne for appellant. A. M. Allen pro se.
Case Date:December 06, 1886
Court:Supreme Court of Missouri
 
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Page 142

2 S.W. 142 (Mo. 1886)

91 Mo. 324

Allen

v.

Kennedy, Appellant

Supreme Court of Missouri

December 6, 1886

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Reversed.

Waters & Wyne for appellant.

(1) Defendant's instruction, in the nature of a demurrer to the evidence, should have been given. The only covenant alleged to have been broken, is that of seisin. A covenant of seisin is a personal covenant in the present tense, and, if broken at all, is broken the moment of its creation, and is immediately converted into a mere chose in action, which is incapable of running with the land, and which can be taken advantage of only by the covenantee, or his personal representative, and neither pass to an heir, a devisee, nor a subsequent purchaser. Rawle on Cov. 336; Blondeau v. Sheridan, 81 Mo. 545; Hall v. Bray, 51 Mo. 288; Davidson v. Cox, 10 Neb. 150. Covenants in proesenti being broken as soon as made cannot, for obvious reasons, run with the land to subsequent owners, so as to entitle them to sue for breach thereof. 3 Wash. Real Prop. [3 Ed.] 394. If there be a total defect of title, defeasible and indefeasible, and the possession have not gone along with the deed, the covenant is broken as soon as entered into, and cannot pass to an assignee upon any subsequent transfer of the supposed right of the original grantee. Chambers v. Smith, 23 Mo. 179. (2) Covenants only run with the land until breach; they then become choses in action, which cannot be assigned. Therefore, suit cannot be brought by, or against, an assignee, for breach of covenants that have fully occurred before assignment. Shelby v. Hearne, 6 Yerg. 512; St. Saviour v. Smith, Burr. 1271; Grescott v. Green, 1 Salk. 199; Tillotson v. Boyd, 4 Sandf. 516; Cuthbertson v. Irving, 4 Hurl. & Norm. 742; Walton v. Crowley, 14 Wend. 62; Hentz v. Thomas, 7 Md. 346; Paul v. Merse, 8 B. & C. 486; Patton v. Deshon, 1 Gray, 329; Johnson v. Sherman, 15 Cal. 287; Quackenbush v. Clark, 12 Wend. 557; Armstrong v. Wheeler, 9 Cowen, 89. (3) There is no allegation of breach of covenant for further assurance, nor facts stated in the petition constituting such breach. Green & Meyers' Mo. Plead. & Prac., secs. 686, 687; Rawle on Cov. 197, 198; Campbell v. Moore, 3 Mo. 597. (4) The measure of damages would be the damage plaintiff has actually sustained. Dickson v. Desire, 23 Mo. 166. (5) There is no evidence that plaintiff is damaged, nor evidence from which the damages, if there be any, can possibly be arrived at. The consideration recited in the deed from Patterson to plaintiff is no evidence as against defendant. Alexander v. Campbell, 74 Mo. 146.

A. M. Allen pro se.

(1) The covenant of seisin, by virtue of the statute, is made to run with the land, and is, in effect, the same as though the grantor was in the actual possession at the time of the conveyance, and had transferred such possession to his grantee. Vancourt v. Moon, 26 Mo. 92. (2) Breach of covenant of seisin is assignable under the practice act. The action must be brought in the name of the assignee, and where, before enforcing his remedy for breach of covenant, the covenantee executes a conveyance...

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