Cockrell v. Proctor

• Decision Date: 30 April 1877
• Citation: 65 Mo. 41
• Parties: COCKRELL v. PROCTOR ET AL., APPELLANTS.
• Court: Missouri Supreme Court

65 Mo. 41

COCKRELL

v.PROCTOR ET AL., APPELLANTS.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Dade Circuit Court.--J. D. PARKINSON, Judge.

Morgan & Buler and H. H. Harding for appellants.

1. The plaintiff might have ignored the statutory covenants, and declared upon the special covenants contained

in the latter clauses of the deed, and had he done so, he would perhaps have been entitled to recover full damages without evidence of eviction or the purchase of a paramount title; but he chose to declare upon the compound covenants, alleging that the defendants were not seized of an indefeasible estate in fee simple. Having done so and failed to prove an eviction or the purchase or even existence of a paramount title or encumbrance, he cannot recover more than nominal damages. Moseley v. Hunter, 15 Mo. 322; Maguire v. Riggin, 44 Mo. 512.

2. Plaintiff having been either actually or constructively in possession of all the land, an eviction must be shown to entitle him to more than nominal damages.

3. Upon the pleadings the burden of proof of title devolved upon the defendants and that of damages on the plaintiff. No legal evidence upon the subject having been introduced by either side, the damages should have been only nominal.

4. The rule that the measure of damages on a broken covenant of seizin is the consideration paid, is predicated upon the principle that that covenant, if broken at all, is broken the instant it is made, and consequently cannot run with the land; but the statutory covenant of seizin runs with the land, and where possession is taken, as it was in this case, an eviction or a forced purchase of a paramount title must be shown before substantial damages can be recovered. Chambers v. Smith, 23 Mo. 174.

T. H. Walser, for respondent.

1. The covenant of seizin is a personal covenant; it is in the present tense, which, if broken at all, is broken at the moment of its creation, and is immediately converted into a mere chose in action, which is incapable of running with the land; the breach extinguishes the covenant. This rule is subject to the exception that, when possession accompanies the conveyance, the covenant is transformed into one of indemnity only, and the measure of damages in that event is the actual loss sustained; and the right of action runs with the land and enures to the party in whom the right of substantial recovery exists. The covenant of seizin runs with the land when possession is taken under the deed; but where there is no title in the grantor, and possession has not accompanied the deed, the covenant is broken the moment it is made. Tapley v. Labeaume, 1 Mo 552; Rawl on Cov., 318; Reese v. Smith, 12 Mo. 347.

2. In declaring on the breach of covenant of seizin of an indefeasible estate in fee, it is only necessary for the plaintiff to negative the covenant generally. Rawl on Cov., 82; Pollard v. Dwight, 4 Cranch 430. A reconveyance was not necessary. Lawless v. Collier, 19 Mo. 480.

3. The burden of proof as to title was on the defendants; having introduced no evidence at all, the judgment as a matter of law would have been for the plaintiff, but the measure of his recovery could only be ascertained from proof, which was afforded by the evidence, which even went further: it was to the effect that the defendants had no title, that they were not in possession themselves when they made the deed, and did not put the plaintiff into possession. If that is true, (and the Court as a jury found it was, and this Court will not enquire into the weight of evidence,) then the finding was for the right party, and the amount fell below the true amount of damages instead of being excessive.

4. Defendants cannot shift responsibility from their own shoulders by imposing it on their grantee to aver and prove at his peril any particular outstanding title. Rawl Cov. Tit., 4 th ed. 84, note 2; Abbott v. Allen, 14 John. 253. They pleaded that they were lawfully seized of the premises. Upon this question they assumed the affirmative; it was to their interest to prove it, as it would operate as a bar to the action. The presumption was that they were not seized of any estate whatever, on their failure to introduce the evidence of title, which is always presumed to be in the possession of the covenantor, and upon that failure the plaintiff, on introducing his deed, is entitled to judgment, as of an entire failure of title. Schofield v. Iowa Co. 32 Iowa 321; Rawl Cov. Tit. 4 th ed. 84, note 3.

HENRY, J.

This was an action commenced in the Barton Circuit Court by plaintiff, to recover damages for an alleged breach of the covenant of seizin, in a deed executed to him by defendants in 1866, conveying the east 1/2 of the south-west 1/4 of section 19, township 32, of range 30, the east 1/2 of the north-west 1/4 of section 8, east 1/2 of section 5, south-west 1/4 of section 5, east 1/2 of north-west 1/4 of section 5, north-west 1/4 of north-west 1/4 of section 5, all of section 22, south-west 1/4 of section 14, and the east 1/2 of south-east 1/4 of section 14, all in township 32, range 31, and lying in Barton County. The deed conveyed the land by the words grant, bargain and sell, and there was also an express covenant that the grantors were seized of an indefeasible estate in fee simple in the premises, and the breach assigned was, that said grantors were not, at the date of the delivery of the deed, seized of an indefeasible estate in fee simple in said lands, and plaintiff alleged that they were not then in possession of any portion of said land, and that plaintiff has never been in possession of the same, or any part of them. In his petition plaintiff does not specify any particular incumbrance or paramount title. Defendants by their answer admit the execution of the deed, and aver that they were, at the date of the deed, seized of an indefeasible estate in fee simple in the said land, and that plaintiff entered upon and held the possession of said land under the deed. On the trial in open court plaintiff entered a disclaimer as to damages for breach of the covenant as to the following tracts of said land, viz: east half of section 5, north 1/2 of north-west 1/4, and south-west 1/4 of north-west 1/4 of section 5, and the east half of north-west 1/4 of section 8. The evidence proved that plaintiff, or those claiming under him, were at the trial in possession of the last described land; that in 1866, after the execution of the deed, plaintiff entered into the possession of section 22, and that one of his sons built a house upon it, and in 1867 abandoned the possession, learning, as he alleges, that he had no title to the land. There was no suit against him, or demand made of him, for the possession of the land, or any portion of it, nor was any portion of the lands in the actual possession of any one else.

1. EVIDENCE: presumption.

I. Plaintiff introduced in evidence a deed from Theodosia Smith, administratrix of Albert J. Smith's estate to himself, conveying to him the east 1/2 of south-west 1/4 of section 19, above described, dated March 21st, 1867, the consideration named therein being $560, but at the conclusion of the evidence the court excluded it. The case was tried in the Dade Circuit Court, (to which it had been taken by change of venue), by the court, without the intervention of a jury, and plaintiff had a verdict and judgment for $3,374, and the defendants have brought ...