Allen v. Kennedy
| Decision Date | 06 December 1886 |
| Citation | 2 S.W. 142,91 Mo. 324 |
| Parties | Allen v. Kennedy, Appellant |
| Court | Missouri Supreme Court |
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 of the land, it is, unless there be something to show a contrary intention, presumed that he intends to pass to his grantee the benefit of the covenant -- that is, all his right to sue for the breach, so far as the grantee sustains injury by reason of it. Kimball v. Bryant, 25 Minn. 496; Scofield v. Iowa Homestead Co., 32 Ia. 317; Hagar v. Buck & Griffin, 44 Vt. 285; Allen & Brown v. Little, 36 Me. 170; Vanderen v. Relf, 20 Mo. 455. (3) The facts alleged in the petition show a breach of the covenant of warranty. The facts, if not expressly stated, are necessarily implied, and, taken in connection with the answer and the proof introduced at the trial, are sufficient to sustain the judgment of the court. Kown v. Williams, 77 Mo. 463; Edmonds v. Phillips, 73 Mo. 58; Garth v. Caldwell, 72 Mo. 752; Bowie v. City of Kansas, 51 Mo. 454; State of Missouri ex rel. v. County Court, 51 Mo. 522; Snyder v. Jennings, 15 Neb. 372; R. S., sec. 3582. (4) The covenant of warranty, and the covenant of quiet enjoyment, are prospective, run with the land, and if, at the time of the conveyance, the grantee finds the premises in the possession of one claiming under paramount title, the covenant of quiet enjoyment and of warranty will be held to be broken, without any other act on the part of the grantee or claimant. By the conveyance, Patterson assigned all her interest in the covenant to respondent. Blondeau v. Sheridan, 81 Mo. 555; Kimball v. Bryant, 20 Minn. 496; Dickson v. Desire, 23 Mo. 165; Wash. on Real Prop. [3 Ed.] 404, and cas. cit.; Grannis v. Clark, 8 Cowen, 41; Mayberry v. McClurg, 51 Mo. 256; Park v. Bates, 12 Vt. 383; Whitteak v. Cook, 15 Johns. 483. (5) The measure of damages is the amount paid by respondent, not exceeding the amount paid by Patterson. Kingsbury v. Millner, 69 Ala. 504; Moore v. Frankenfiell, 25 Minn. 540; Allen v. Walsch, 36 Md. 129; Price v. Neal, 90 N.C. 290; Wilson v. Peele, 78 Ind. 384; Hutchins v. Roundtree, 77 Mo. 500. (6) All parties to a deed, as well as those privies in blood, estate, or in law, are bound by the recitals it contains. Hasenritter v. Kirchoffer, 79 Mo. 242; Stoutimore v. Clark, 70 Mo. 471.
On the fifth day of May, 1875, the defendant conveyed the forty acres of land in question to Patterson, by a deed containing the statutory words, "grant, bargain, and sell," and also a covenant of general warranty. On the twelfth of September, 1878, Patterson, by a like deed, conveyed the same land to plaintiff. Plaintiff brings this suit for damages on the covenants in the deed to Patterson.
1. There is a question made as to whether the petition declares on the covenants of seisin only, or on that and the covenant of warranty. The petition is very carelessly prepared, but we think it shows a purpose to declare on both. As the cause will be remanded, the plaintiff can amend so as to bring both covenants fully on the record proper, and we shall treat the case as if such an amendment were made.
2. The plaintiff put in evidence the two deeds before mentioned, and showed that the land was a part of the swamp lands of Chariton county, and that Riddle was the owner, by deeds, from and through the county. He testifies that, after he bought the land he found defendant had no title, and, on further inquiry, found that Riddle had taken possession long before plaintiff had purchased the same. The plaintiff concedes that the full measure of his damages is the amount he paid, with interest. For proof of damages he relies alone on the recital of three hundred and fifty dollars consideration paid by him in his deed from Patterson; and the question is whether this made out a prima facie case. As to the parties to a deed, the consideration clause is prima facie evidence, but it has the force and effect only of a receipt, and is open to explanation and contradiction, not for the purpose of defeating the deed as a conveyance, but for the purpose of showing the true consideration. 57 Mo. 552; 76 Mo. 33. Generally, however, the recital in the consideration clause is not evidence of the amount paid, or the value of the premises as to third persons. Rose v. Taunton, 119 Mass. 99. We have held that the recital of the place of residence of the grantee in a deed is not evidence of the fact in his own favor. 30 Mo. 166. The question arose in a foreclosure suit in a case decided by the supreme court of Ohio, and reported in 1 West Rep. p. 53. There H. sold the property and by his contract agreed to make a deed upon payment of the purchase money. He then made the mortgage on the same premises. Thereafter the purchaser assigned his contract and the successive assignees made divers payments. H. then made a deed to the last assignee, reciting payment in full, and it was held this recital was not evidence of payment in full as against the mortgage. A substantial issue in this case was, how much did Allen pay, and the burden of proof was upon the plaintiff. The statement of the amount paid in the deed is no more than the declaration of Patterson. Kennedy is no party to that deed, claims nothing under it, and we must hold there was a failure of proof. Where the contest is between a prior unrecorded deed, and a subsequent recorded deed, the question is, whether the holder, under the recorded deed, purchased in good faith for value and without notice. The deed there may well be regarded as giving the grantee a prima facie standing in court, but we express no opinion here in that class of cases; the issue there is unlike the present one.
3. As to the covenant of seisin of an indefeasible estate in fee-simple, the claim is, that this covenant, if broken at all, is always broken when made, and does not run with the land. Whatever may be...
To continue reading
Request your trial