Baird v. Harris

• Decision Date: 07 January 1927
• Citation: 290 S.W. 80,220 Mo.App. 1290
• Parties: SAMUEL E. BAIRD, RESPONDENT, v. REX HARRIS ET AL., APPELLANTS. *
• Court: Missouri Court of Appeals

290 S.W. 80

220 Mo.App. 1290

SAMUEL E. BAIRD, RESPONDENT, v. REX HARRIS ET AL., APPELLANTS. *

Court of Appeals of Missouri, Springfield

January 7, 1927

Appeal from the Circuit Court of Christian County.--Hon. Fred Stewart, Judge.

REVERSED.

Judgment reversed.

Moore & Moore and Charles Farrar for appellants.

The general doctrine is, that a recital inserted in a deed through mistake will not be given such credence, so as to exclude the truth, or exclude evidence as to the facts. Graham v. Olson, 116 Mo.App. 272, 92 S.W. 728. The land being misdescribed in the deed through mutual mistake the defendants herein having no estate in the premises attempted to be conveyed does not give rise to an action for a breach of the warranty, there being no estate to which the warranty might be annexed. Powell v. Bowen, 214 S.W 142; Breen v. Morehead, 126 S.W. 650. When the plaintiff purchased the land from Pierce and assumed and agreed to pay the encumbrance to the Farmers Bank of Chadwick he is estopped to deny the indebtedness, the nature of the property mortgaged, the nature and identity of the mortgagor. Taylor v. Saugrain, 1 Mo.App. 312. Plaintiff by his failure to make inquiry as to the indebtedness due on the lands intended to be conveyed, and allowing the same to be foreclosed under the deed of trust executed and recorded induced the holder of said mortgaged security to believe that he had waived all rights and remedies that he might have asserted. Lindner v. Cape Brewery Co., 131 Mo.App. 680; Watkins v. Greene, 60 N.W. 44; Miller v. Ready, 108 N.E. 605. When the plaintiff herein allowed the land he thought was being purchased from Pierce to be sold under the mortgage, and failed to pay the indebtedness and such was sold thereunder plaintiff is forever estopped from claiming any right, title or interest therein, and estopped from predicating an action for damages on the warranty in the deed from Harris to Pierce or from Pierce to plaintiff. Sanguinett v. Webster, 153 Mo. 343; Zuendt v. Doerner, 101 Mo.App. 528. The deed from Harris to Pierce while not conveying to Pierce the legal title to the lands intended to be conveyed, did however pass to Pierce the equitable title thereto, which passed from Pierce to plaintiff. 252 Mo. 147; 54 Mo. 267; 181 Mo. 359. When the land was foreclosed under the mortgage setting forth a defective description of the lands intended to be mortgaged the lien of such mortgage attached in equity to the lands intended to be conveyed and the purchaser at the foreclosure sale took the equitable interest to the lands from plaintiff herein, who has no legal right to predicate an action for damages for breach of warranty. 117 Mo. 508.

Ben L. Clardy and Chas. F. Boyd for respondent.

The words in a warranty deed: Grant, bargain and sell, carries with them the meanings, that the grantor was, at the time of the execution of the conveyance, seized of an indefeasible estate, in fee-simple, in the real estate thereby granted, and for further assurances of such real estate to be made by the grantor and his heirs to the grantee and his heirs and assigns; and may be sued upon in the same manner as if such covenants were expressly inserted in the conveyance. Sec. 2180, R. S. 1919. Covenants contained in this section run with the land, and may be sued upon by any subsequent grantee who sustains a loss by failure of or defect in the title. Magwire v. Riggin, 44 Mo. 512, Affirmed by the U. S. Supreme Court in 15 Wallace (U.S.) 549; Langenberg v. D. G. Co., 74 Mo.App. 13; Walker v. Deaver, 79 Mo.App. 665; Talbert et al. v. Grist, 198 Mo.App. 492, 201 S.W. 906. The covenants of seizin of the warranty deed made by appellants to Pierce, if broken at all, were broken at the very time the deed was made and nothing subsequently done would avoid the failure of title. Leet v. Gratz, 124 Mo.App. 394, 101 S.W. 696; Jones v. Haseltine, 124 Mo.App. 674. The measure of damages to be recovered will be the amount paid for the land by the grantee with interest from that date until the day of judgment. Coleman v. Lucksinger, 224 Mo. 1.

COX, P. J. Bradley and Bailey, JJ., concur.

OPINION

COX, P. J.

Action for damages upon a breach of covenant in a warranty deed to forty acres of land. Plaintiff recovered and defendant appealed.

The essential facts are either conceded or undisputed so the questions to be decided are purely legal. The facts are substantially as follows: Defendant, Rex Harris, was the owner of the Northeast Quarter of the Southwest Quarter and the Northeast Quarter of the Northwest Quarter of section 20 township 25, range 20, in Christian county, Missouri. He sold to A. R. Pierce the Northeast Quarter of the Northwest Quarter of said section 20 but in writing the deed the Northeast Quarter of the Southwest Quarter of said section was written in the deed by mistake. Pierce and wife then executed a deed of trust to R. M. Mapes, trustee, to secure a note of $ 100 payable to the Farmers' Bank of Chadwick, Missouri, in which the description of the land followed the description in his deed. This deed of trust also contained covenants of title. Pierce and wife afterward sold the land to plaintiff and executed to him a general warranty deed describing the same land as described in the former deed from defendant to Pierce, being also the same land described in the deed of trust executed by Pierce and wife to secure the note to the bank. This deed from Pierce to plaintiff recited that the covenants were made subject to the deed of trust above described and plaintiff assumed and agreed to pay the debt of $ 100 secured by said deed of trust. Plaintiff did not pay this debt to the bank, when it came due and the deed of trust was foreclosed and defendant became the purchaser at the trustee's sale. Plaintiff afterward discovered that at the time defendant made his deed to Mr. Pierce he did not own the Northeast Quarter...