Clore v. Graham

Decision Date31 October 1876
Citation64 Mo. 249
PartiesJOSIAH CLORE, Plaintiff in Error, v. ROBERT M. GRAHAM, Defendant in Error.
CourtMissouri Supreme Court

Error to Daviess County Circuit Court.

Conover & Hicklin, for Plaintiff in Error.

I. The evidence objected to by the plaintiff, offered by defendant to prove that there was no consideration, was illegal and incompetent. (13 Mo. 151; 1 Greenl. Ev. §§ 24, 25 and 26.)

II. The covenant against incumbrances runs with the land.

III. The fact that the plaintiff had made no contract with defendant about the land will not release defendant from liability on his covenants. (Rawle Cov., [[[[[3d. ed.] pp. 69, 70, and note 1, p. 462; Byrnes vs. Rich, 5 Gray, 518.)

IV. In order to bind the promiser (the defendant) it is not necessary that the consideration for the promise should have moved from plaintiff. (Rogers vs. Gosnell, 58 Mo. 589; Myers vs. Lowell, 44 Mo. 328; Rogers vs. Gosnell, 51 Mo. 466.)

L. T. Collier, for Defendant in Error.

I. The deed from Graham to Clore was procured by fraud and concealment on the part of Froman, and was executed by Graham in ignorance of the mortgage to Daviess County.

II. Although Clore knew nothing of said mortgage until after his purchase from Froman, and the execution of the deed by Graham, still, he should be regarded as affected with notice of Froman's fraud and will be bound thereby. Where one of two innocent parties must suffer, he must bear the loss who causes the injury.

III. Although it may appear from the deed in evidence that Clore is Graham's vendee, yet the petition admits that Froman was really the vendee of Graham, and Clore the vendee of Froman. And in the light of equity and the facts in the case, Clore is really and in fact the assignee of Froman, and as such, has no right to recover herein for the reason that a covenant against incumbrances does not run with the land.

IV. The deed from Graham to Clore is wholly unsupported by any consideration paid by the latter to said Graham, and appellant should look to his vendor for any loss he may have sustained by reason of Froman's fraud.

HOUGH, Judge, delivered the opinion of the court.

In the Spring of 1867, the defendant, Graham, sold certain lands in Daviess County to one Froman, who, without receiving any deed therefor, entered at once into the possession thereof, paid the purchase money and made lasting and valuable improvements.

On the 20th day of August, 1867, Froman mortgaged a portion of said lands to Daviess County to secure a note for three hundred dollars, which mortgage was duly recorded on the succeeding day.

On or about the 22d day of November, 1869, the plaintiff Clore bought said lands from Froman and paid him therefor. On the same day, the defendant Graham, not yet having made a deed to Froman, at the request of Froman and with the consent of the plaintiff, and solely for their convenience, executed and delivered directly to the plaintiff a deed in fee, which contained in the granting clause, the words “grant, bargain and sell.” Froman having failed to pay his debt to the county of Daviess, the plaintiff in August, 1873, paid the same, and thereupon brought the present suit against the defendant, for a breach of the covenant against incumbrances implied in the words “grant, bargain and sell.” Neither the plaintiff nor defendant knew anything of the mortgage at the time of the conveyance.

On this state of facts the circuit court held that the plaintiff could not recover, and he has brought the case here by writ of error.

It is provided by our statute that the words “grant” “bargain,” “sell,” in all conveyances in which any estate of inheritance in fee simple is limited, shall, unless restrained in express terms, be construed to be express covenants, “First, that the grantor was, at the time of the execution of such conveyance, seized of indefeasible estate, in fee simple, in the real estate thereby granted; second, that such real estate was, at the time of the execution of such conveyance, free from incumbrance done or suffered by the grantor, or any person claiming under him; third, for further assurance of such real estate to be made by the grantor and his heirs to the grantee and his heirs and assigns,” which covenant may be sued upon as if expressly inserted in the conveyance.

Whether the plaintiff has a right of action depends upon the construction to be given to the covenant against incumbrances. He claims a right of action under the last clause of that covenant.

In considering this question it may be useful, as well as interesting, to present a summary of the legislation on this subject. In the statute of 6 Anne . 35, § 30, which first gave the effect of specific covenants to the words “grant,” “bargain” and “sell;” and to which our statute is plainly traceable, the following language was employed after the covenant of seizin: “Free from all incumbrances (rent and services due to the lord of the fee only excepted) and for quiet enjoyment thereof against the bargainor, his heirs and assigns, and all claiming under him; and also for further assurance thereof to be made by the bargainor, his heirs and assigns, and all claiming under him, etc.

In 1715 this section was substantially adopted in Pennsylvania, omitting, however, the covenant for further assurances, and expressing the covenant against incumbrances in the following language: “Freed from incumbrances done or suffered from the grantor (excepting the rents and services due to the lord of the fee).” The Pennsylvania statute was adopted for the territory of Indiana in 1804, and in the same year it was enacted by the governor and judges of that territory, for the district of Louisiana, the words “due to the lord of the fee” being replaced by other appropriate words. (Territorial Laws Mo., Vol. 1, p. 46.)

In the Revised Statutes of 1825, the covenant against incumbrances was in...

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11 cases
  • Dudley v. Waldrop
    • United States
    • Missouri Court of Appeals
    • 11 Marzo 1916
    ...had so disclosed, such notices would not have relieved the grantor in the warranty deed from his covenant against incumbrances. Clore v. Graham, 64 Mo. 249, 255. A grantee under a deed containing covenants of title, in undisputed possession, will not be relieved against the payment of the p......
  • Warder v. Henry
    • United States
    • Missouri Supreme Court
    • 6 Noviembre 1893
    ... ... for Title [5 Ed.], sec. 138, p. 181, and cases cited; ... Kellogg v. Malin, 50 Mo. 503; Williamson v ... Hale, 62 Mo. 406; Clore v. Graham, 64 Mo. 249, ... 255; Rawle on Covenants for Title [5 Ed.], secs. 88, 89, 291; ... King v. Kilbride, 58 Conn. 109; McLeod v ... ...
  • Long v. Kansas City Stock-Yards Co.
    • United States
    • Missouri Supreme Court
    • 12 Octubre 1891
    ...done except a transfer of the legal title. Under such circumstances, adverse possession exists. Ridgeway v. Holliday, 59 Mo. 444; Clore v. Graham, 64 Mo. 249; Adair Adair, 77 Mo. 630. Such being the theory of appellant below, he cannot change front in this court. State v. Hope, 100 Mo. 347.......
  • Hillman v. Hedgpeth
    • United States
    • Missouri Court of Appeals
    • 27 Mayo 1980
    ...to exclude evidence tending to prove such supposed defense." Scott v. Tanner, 208 S.W. 264, 266 (Mo.App.1919). Also see Clore v. Graham, 64 Mo. 249 (1876); Williamson v. Hall, 62 Mo. 405 (1876); Kellogg v. Malin, 50 Mo. 496 (1872); Elmore v. McNealey, 236 S.W. 381 (Mo.App.1922); Dudley v. W......
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