Armstrong v. Darby

• Decision Date: 31 March 1858
• Parties: ARMSTRONG, Appellant, v. DARBY, Respondent.
• Court: Missouri Supreme Court

26 Mo. 517

ARMSTRONG, Appellant,

v.DARBY, Respondent.

Supreme Court of Missouri.

March Term, 1858.

1. The statutory covenant for further assurances implied in the words ““grant, bargain and sell,” embraces such encumbrances only as the vendor has control of; where the defect in the title cannot be supplied by the vendor--as where there is an outstanding mortgage created by his grantor--such vendor cannot be made liable on his covenant for further assurance.

Appeal from St. Louis Land Court.

This was an action to recover damages for an alleged breach of a covenant contained in a deed from John F. Darby, defendant, to the plaintiff, D. H. Armstrong, dated July 16, 1845. The petition set forth the deed from Darby in hæc verba, whereby, in consideration of $1200, he did “grant, bargain, sell and convey” to Armstrong certain real estate in St. Louis county. The petition alleges the payment of the consideration money and delivery of the deed, and that Armstrong immediately went into possession under said deed of the premises conveyed thereby. The petition also alleges that by reason of the words “grant, bargain and sell,” contained in said deed, and by force of the statute in such case provided, the defendant, among other undertakings in and by his said deed, covenanted to and with the plaintiff that he, the said defendant, would at any and all times thereafter, at the request of the plaintiff, and at the cost of the defendant, make and execute any and every other deed or assurance in the law for the more effectual confirming the premises and the conveyance of the said land in said deed described to the plaintiff that he should or might devise, advise or require; and that he, the defendant, would remove and pay off and discharge any encumbrance or encumbrances on said land whenever requested or required by the plaintiff so to do. The petition also states an encumbrance upon the property--being a deed of trust or mortgage duly recorded, made by Darby's grantor, to secure a debt, which existed and was not paid off or satisfied at the time Darby made his said deed to Armstrong. The petition also states that judicial proceedings were instituted to foreclose said mortgage, to which both Darby and Armstrong were made parties, and which resulted in a judgment of foreclosure and order of sale of the premises to satisfy the debt; that defendant was requested by plaintiff to pay off and discharge said encumbrance, which defendant neglected and refused to do, and that the plaintiff was forced and obliged to pay off and discharge, and he did pay off and discharge the same in order to protect his title and possession.

The defendant demurred to this petition. The court sustained the demurrer.

Krum & Harding and B. A. Hill, for appellant.

I. The words “further assurances” in the statute, in their technical sense, as well as by their general meaning, are sufficiently comprehensive to include a covenant on the part of the grantor to indemnify and save harmless the grantee in the deed against any encumbrance on the land at the time of making the deed. This is the gist of the undertaking of Darby as stated in the petition; for a covenant to procure a release or discharge of an existing encumbrance practically is nothing but a covenant of indemnity against, as much so as a covenant of warranty is a covenant for quiet enjoyment. (2 Black. Com. 294; Platt on Covenants, 341; 6 Anne, ch. 35, sec. 30; Geyer's Dig. 127; R. C. 1825, p. 217; King v. Jones, 5 Taunt. 414, 427.) It is clear that Darby undertook to convey a good title; he undertook to confirm the enjoyment of the premises to plaintiff. He covenanted to do “all further acts,” &c., that should be necessary and practicable in order to accomplish this end. Has he performed his undertaking? The removal of the encumbrance in question was a necessary act to be performed to prevent the appellant from being disturbed in his possession and enjoyment. (13 N. H. 167.) Every undertaking expressed in the forms generally used for covenants of further assurance is contemplated and understood to be included in the respondent's obligation in the deed in question; he was, consequently, in law and duty bound on request of his grantee to procure the release of the encumbrance stated in the petition. (See Collier v. Gamble, 10 Mo. 467; Id. 460; Dickson v. Desire's adm'r, 23 Mo. 161.) The covenants set out in the petition being contained in the deed, the breaches are well stated.

Gantt, for respondent.

I. There was no breach of the covenant of further assurance. When a man covenants for further assurance he covenants to give such other deeds or to go through such other forms as will vest in the covenantee all such title as may be in him at the time of the original conveyance or as may afterwards come to him; and it would seem that if by levying a fine or suffering a recovery he can convey or effect the conveyance of an interest outstanding in his wife, he is by this covenant bound to do it. But this is the extent of his liability under the covenant; for he is not bound to suffer a recovery which may bind his issue in tail or him in...