Alexander v. Schreiber

• Court: Missouri Supreme Court
• Writing for the Court: NAPTON
• Citation: Alexander v. Schreiber, 10 Mo. 460 (Mo. 1847)
• Decision Date: 31 March 1847
• Parties: ALEXANDER v. SCHREIBER, USE OF, &C.

10 Mo. 460

ALEXANDER

v.SCHREIBER, USE OF, &C.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GANTT & HAMILTON, for Appellant. 1. That admitting the words of the statute to have the force of a general covenant of seizen by indefeasible title, the existence of an outstanding incumbrance is no breach before foreclosure or payment. 16 Johns. 254; 7 Johns. 380, 381; 5 Pick. 217; 7 Johns. 471; 11 Johns. 538; Doug. 610; 2 Burr. 979. 2. Oyer being given, it was manifest that the deed contained an express covenant to warrant and defend. This express covenant abrogated all implied covenants. 11 Johns. 122; 2 Caine, 192; 2 Bos. & Pul. 26; part IV of Coke's R. 80, 86; Kent v. Welsh, 7 Johns. 258; 4 Dallas, Benden v. Fromberger, 440. (This case is directly in point, being upon a similar statute with ours). 3. That the notice of special matter filed with the general issue is in every respect similar to a plea alleging the facts whereof notice is given. To sustain a motion to strike it out, therefore, was equivalent to sustaining a demurrer to a plea alleging the same facts. But the facts stated in the notice were such as constituted a good defense to the action, and defendant should have been permitted to give evidence thereof. See 4 Dall. 438, 440; 2 Wend. 517; as to the first point. As to the second, see 9 Cowen, 271; 2 Johns. 595; Pemberton v. Staples, 6 Mo. R. 59; 16 Johns. R. 254, 128; 7 Johns. 380, 381; 5 Pick. 217; 4 Mass. 627. The title acquired by Alexander before the commencement of the suit, was complete, and vested in Schreiber by way of estoppel. 9 Cowen, 271; Rev. Code of Mo. for 1835, p. 119, § 3. 4. When, upon demurrer to the pleas of defendant, after oyer given, the whole record was before the court, it became manifest that instead of a general and express covenant of seizen, the grantor had (leaving out of view for the present the question of the abrogation of this implied covenant by that which was expressed) only covenanted against the defeasibility of his estate by acts or incumbrances done or suffered by him or those claiming under him. See 4 Kent's Com. 473, 474; Gratz v. Ewalt, 2 Binney, 95; 4 Dallas, 440, and see also the statute of 1835 of Mo., wherein if the first covenant or covenant of seizen indefeasible, &c., were a general covenant, the second or the covenant against incumbrances by grantor, &c., would have nothing to operate upon.

PRIMM & TAYLOR, for Appellee. 1. That the words of conveyance used in the deed from Alexander to Schreiber are express covenants, not implied covenants. 2. That one of these covenants is that Alexander, at the time of the execution of that deed, was seized of an indefeasible estate in fee simple of the lots in question. 3. That a grantee in a deed containing such words of conveyance can, in a suit against the grantor, declare in express words that the grantor covenanted that he was seized of an indefea sible estate, &c. Rev. Laws of 1835, pp. 119, 120, § 7. 4. That such covenant can be broken the very instant it is made, and, in the present case, was so broken, giving an immediate right of action to Schreiber, and that, too, with out waiting for an eviction. Greenby v. Wilcocks, 2 Johns. R. 1; Hamilton v. Wilson, 4 Johns. R. 72; Abbott v. Allen, 14 Johns. R. 248; Lott v. Thomas, 1 Pennington's R. 407; Chapman v. Holmes, 5 Halsted, 20; Stewart & Fine v. Drake, 4 Halsted, 139. 5. That such a covenantee can bring his action, although he may never have been disturbed or molested in his possession, and the vendor cannot shelter himself under a title acquired subsequently to the bringing of the action. Morris v. Phelps, 5 Johns. R. 49. 6. That the covenant of general warranty contained in the deed from Alexander to Schreiber cannot control the express covenants which the words “grant, bargain and sell,” used in that deed, convey, but must be auxiliary to those covenants Simonds v. Beauchamp, 1 Mo. R. 420, before cited. Two warranties made by and to the same persons and in the same instrument, the one express, the other implied, may stand together. Burton on Real Property, above cited, p. 186

NAPTON, J.

This was an action of covenant upon a conveyance of some lots in St. Louis, in which the words “grant, bargain and sell” were used, as well as the usual covenant of general warranty. The statutory covenant con tained in the words ““grant, bargain and sell” was declared on as a covenant of seizen of an indefeasible estate in fee simple against all the world, and a breach of this covenant is alleged by reason of an unsatisfied mortgage upon the lots conveyed at the time of the conveyance. The plaintiff, upon the trial, obtained a verdict, and had a judgment for the purchase-money of the lots, with interest, &c. A motion in arrest of judgment was made and overruled.

The only question arising on the record, although others have been dis cussed at the bar, is upon the construction which the Circuit Court gave to the 24th section of the act concerning Conveyances. Rev. Code 1845, p. 221. That section, as it now stands in the Revision of 1845, declares that the words ““grant, bargain and sell” shall be construed to be the following express covenants, unless restrained by express terms: First, that the grantor was, at the time of the execution of such conveyance, seized of an 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 incumbrances done or suffered by the grantor, or any person under him. Third, for further assurances of such real estate to be made by the grantor and his heirs to the grantee and his heirs and assigns.” These covenants, the act declares, may be sued upon in the same manner as though they were expressly inserted in the conveyance.

The first act on this subject in our statute book was passed in 1804 by the Governor and Judges of the Indiana Territory. That act declares that “in all deeds conveying an estate of inheritance, the words ‘grant, bargain and sell’ shall be adjudged an express covenant to the grantee, his heirs and assigns, that the grantor was seized of an indefeasible estate in fee simple, freed from incumbrances done or suffered from the grantor (except the rents and services that may be reserved), as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed.” The act further declared, “that in any action upon such covenant the breaches might be assigned as if they were expressly inserted.”

In the Revision of 1825 the law on this subject was this: “It is enacted that the words ‘grant, bargain and sell’ shall be adjudged express covenants to the bargainee or grantee, his heirs and assigns, for the bargainor or grantor, for himself, his heirs, executors and administrators, that the bargainor or grantor was, at the time of the execution of such deed, seized of an indefeasible estate in fee simple in and to the lands, tenements and hereditaments thereby granted, bargained and sold, and that the same was then free from incumbrances done or suffered from the bargainor or grantor, 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, unless the same be restrained,” &c.

It is at least curious, if it be not instructive, to notice the mutations which this provision has undergone. It is not easy to say whether these changes have been the result of accident, mistake or design.

The act of 1804 is identical in terms with the statute of Pennsylvania, which latter statute is obviously borrowed from the 30th section of the statute 6th Anne, ch. 35. The Pennsylvania statute has been construed as limiting the covenant of seizen to the acts of the grantor and those claiming under him. Lessee of Gratz v. Ewalt, 2 Binney, 95. In Alabama a similar construction was given to a similar statute. Roebuck v. Dupuy, 2 Ala. R. 538.

It will observed that the act we are now called upon to construe is essentially different from the act of 1804. The statute now in force, and which has been in force since the Revision of 1825, with slight alterations, declares that the covenants therein specified shall be considered as express covenant, and as though they were in terms inserted in the deed. The only question, then, which can be raised upon the phraseology of this statute is, whether the second covenant therein specified, which is against incumbrance done or suffered by the grantor, must be construed to limit the first and third covenants, which are unlimited in their terms.

In the case of Browning v. Wright, 2 Bos. & Pull., 14, there was a special warranty against the acts of the grantor and his heirs, which was followed by a covenant that the grantor, notwithstanding any thing by him done to the contrary, was lawfully and absolutely seized of the land conveyed; and a further covenant that he had a good right, full power and authority to convey in manner aforesaid. Lord Elson considered the question in that case to be,...