Allen v. Kennedy

• Decision Date: 06 December 1886
• Citation: 91 Mo. 324,2 S.W. 142
• Parties: ALLEN v. KENNEDY.
• Court: Missouri Supreme Court

2 S.W. 142

91 Mo. 324

ALLEN v. KENNEDY.

Supreme Court of Missouri.

December 6, 1886.

1. COVENANT — ACTION FOR BREACH — EVIDENCE — DEED — RECITAL OF CONSIDERATION.

Where a plaintiff sues for breach of the covenants of seizin and warranty in the deed to his grantor, the recital of the consideration in the deed from his grantor to him does not constitute prima facie evidence, as against the defendant, the covenantor in the deed to plaintiff's grantor.

2. SAME — SEIZIN — RUNNING WITH LAND.

In Missouri, the covenant of seizin of an indefeasible estate in fee-simple is a covenant of indemnity, and runs with the land, to the extent that if the covenantee takes any estate, however defeasible, or if possession accompanies the deed, though no title pass, it inures to the subsequent grantee upon whom the loss falls.

3. SAME — ASSIGNMENT — ACTION FOR BREACH.

In Missouri, covenants in a deed may be assigned, so that the grantee may sue for damages arising from a breach.

4. SAME — ACTION BY GRANTEE OF COVENANTEE.

A. conveyed to B., with covenants of warranty and seizin, lands of which another person was in possession. B., without obtaining possession, conveyed to C., by deed containing full covenants. C. having brought an action against A. upon the covenants in favor of B., held that, under the deed by B. in his favor, he was entitled to maintain the action.

Appeal from circuit court, Jackson county.

Action to recover damages for breach of covenant. Trial without a jury, and judgment for plaintiff. Defendant appeals.

A. M. Allen, pro se. Waters & Wynne, for appellant, Kennedy.

BLACK, J.

On the fifth May, 1875, the defendant conveyed the 40 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 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 covenant of seizin 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 case 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 purchased the same. The plaintiff concedes that the full measure of his damages is the amount he paid, with interest. For proof of damages, the plaintiff relies alone on the recital of $350 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. Fontaine v. Boatmen's Sav. Inst., 57 Mo. 552; Wood v. Broadley, 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. 100. 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. Fine v. St. Louis Pub. Schools, 30 Mo. 166. The question arose in a foreclosure suit in a case decided by the supreme court of Ohio, and reported in 1 N. E. Rep. 523. 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 mortgagee. A substantial issue in this case was, how much did Allen pay, and the burden of the 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...