Becker v. Knights of Columbus Bldg. Co.
| Decision Date | 02 June 1931 |
| Citation | 39 S.W.2d 402,225 Mo.App. 513 |
| Parties | WM. J. BECKER AND JAMES J. O'BRIEN, APPELLANTS, v. KNIGHTS OF COLUMBUS BUILDING COMPANY, A CORPORATION, RESPONDENT |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of the City of St. Louis.--Hon. Victor H Falkenhainer, Judge.
AFFIRMED.
Judgment affirmed.
Hall & Dame for appellants.
(1) Under the admitted and uncontroverted facts plaintiffs were entitled to a verdict in their favor. Defendant's warranty deed, having the statutory granting words "grant, bargain and sell," conveyed to the grantee plaintiffs, with the statutory covenants carried by the form of the deed. It conveyed the improvements and all that constituted a part of the realty. Defendant, grantor, by a prior demise (Exhibit E) had relinquished title to the improvements. R. S. Mo. 1919, sec. 2180; Peters v. Worth, 164 Mo. 431; Bast v. Mason, 165 Mo.App. 718; 58 A. L. R. 1352, note. (2) The outstanding lease constituted a breach of the covenants of the deed since the deed contained no exceptions as to the lease. The items of damages prayed for are proper for such breach. Anthony v. Rockefeller, 102 Mo.App. 326; Hickman v. Hickman, 55 Mo.App. 303; Kite v. Pittman (Mo. App.), 278 S.W. 830; Lasswell Land & Lumber Co. v. Langdon (Mo. App.), 204 S.W. 812; Walker v. Deaver, 79 Mo. 644, 11 R. C. L. 1057 et seq.; 35 L.R.A. (N.S.) 781; 61 A. L. R. 11, note; Hazelett v. Woodruff, 150 Mo. 534. (3) The fact that the grantee in the deed had knowledge of the outstanding lease would prevent grantee from ousting the lessee by possessory action at law, but would not alter the character of the lease as an incumbrance and breach of covenants of the deed. Anthony v. Rockefeller, 102 Mo.App. 326; Union Central Life Ins. Co. v. Tillery, 152 Mo. 421; Cox v. McKinney, 212 Mo.App. 522, 528 S.W. 421; Ann. Cases 1914D, page 1176; Simons v. Diamond Match Co., 159 Mich. 241. (4) The effect of the deed could not be varied by parol. A prior oral agreement, if there was such, that the purchaser was to accept the grant subject to the encumbrance of the lease, was inconsistent with the deed and not admissible to destroy the covenants of the deed. Laclede Laundry Co. v. Freudenstein, 179 Mo.App. 175; Ann. Cases 1914D, page 1176; 7 R. C. L. 1136, 1163; Betts v. Harvey (Mo. App.), 297 S.W. 995; Cantrell v. Crane, 161 Mo.App. 308; Anthony v. Rockefeller, 102 Mo.App. 326. (5) Defendant's instruction numbered 11, which told the jury that if they found plaintiffs, grantee, agreed (referring to parol negotiations) to accept the premises subject to the lease, plaintiffs were not entitled to recover was erroneous and highly prejudicial to plaintiffs. Authorities under point 4. (6) Defendant's instruction numbered 2 is not based upon estoppel as a defense, or an agreement to accept constructive possession, but predicates an agreement to assume an incumbrance contradictory to the covenants of the deed, and is hence erroneous and misleading. Authorities under point 4. (7) There was no evidence except the testimony of witness John S. Leahy, bearing upon agreement or estoppel in relation to the lessee of the outstanding unexpired lease being allowed to remain on the purchased property, and the testimony of that witness would not, if given its utmost effect, support the defense of estoppel. It does not tend to show that the deed was proffered on the condition that the lessee was to remain in possession or that the grantee consented to accept the property subject to the lease. There was no evidence that the grantee was to accept the lease and all the burdens under which it placed the lessor. Hence, plaintiffs, in any event, were entitled to recover the money reasonably spent in buying off the lessee, which includes one-half of the costs of the improvements and the value of the equipment. Authorities under points 2, 4 and 8. (8) Any possible estoppel or agreement to allow the lessee to remain in possession extended only to possession of the lessee. Plaintiffs, in any event, were not precluded thereby from recovering money spent for the improvements to which they were entitled under the deed and which they had to redeem from the lease. Anthony v. Rockefeller, 102 Mo.App. 326; Cross v. Noble, 67 P. 74, 35 L.R.A. (N.S.) 779, note; 50 A. L. R. 204, note. (9) The trial court erred severally in refusing to give plaintiffs' offered instructions C, D and E. It left the jury without guidance as to the legal effect of the covenants of the deed and as to the legal effect of the lease. (10) Wm. J. Becker, trustee, and James J. O'Brien, cestui que trust, were properly joined as plaintiffs. Citizens Trust Co. et al. v. Tindle (Mo.), 199 S.W. 1025.
Leahy, Saunders & Walther for respondent.
(1) It was for the jury to determine under the evidence whether plaintiffs accepted the conveyance subject to Cassilly's occupancy under the lease. If they so found, as they did, plaintiffs were not entitled to recover of defendant for breach of the covenant against encumbrances, because defendant delivered and plaintiffs accepted constructive possession of the premises. Kneib v. Beardsley, 139 Mo.App. 565; Ream v. Goslee, 52 N.E. 93. (2) The issues having been framed and the case tried upon the theory that parol evidence was admissible as evidence, that plaintiffs agreed to accept the conveyance with Cassilly in possession, and that he was to remain upon the premises, having been offered by defendant and admitted, without objection, plaintiffs cannot, on appeal, complain that such evidence was improperly admitted. International Text Book Co. v. Halbrook, 200 S.W. 705; Briegel v. Terry, 226 S.W. 624; Cady v. Coates, 101 Mo.App. 152; Forest v. Rogers, 128 Mo.App. 6. (3) Where a grantee knowingly assumes an encumbrance or accepts the benefits thereof and, in addition to the grantee's knowledge, there is something in the transaction showing that the parties did not intend the encumbrance should be within the covenant, the general rule, that mere knowledge of the grantee will not bar recovery for breach of covenant, does not apply. 15 C. J. 1232; Urich v. McPherson, 149 P. 295 (Idaho) ; Medler v. Hiatt, 8 Ind. 171; Savage v. Whitebread, 3 Chancery Rep. 24, 21 Reprint 717; Gill v. Perrin, 52 A. (N.H.) 560; McFarland v. Melson, 20 S.W.2d 66; Gilmer v. Powell, 256 S.W. l. c. 125; 21 R. C. L., page 381, section 152. (4) If, as the jury found, plaintiffs led defendant to believe that they would take the conveyance subject to Cassilly's tenancy and that they wanted Cassilly to remain in possession until their plans should more fully develop, and that defendant delivered and plaintiffs accepted the deed with that understanding, plaintiffs are estopped to claim a breach of the covenants in the deed and to recover damages of defendant for breach thereof. All elements of estoppel are present. First Natl. Bank of Mexico v. Ragsdale, 171 Mo. l. c. 185; Hequembourg v. Edwards, 155 Mo. l. c. 522; Becker v. Becker, 250 Ill. 117, 95 N.E., page 70; Savage v. Whitebread, 3 Ch. Rep. 24, 21 Reprint 717. (5) Plaintiffs, by their contract of purchase, and under the evidence, purchased an unimproved parcel of real estate and by their petition complain of defendant's failure to remove the encumbrance of Cassilly's lease or to dispossess Cassilly. They cannot, under the issues framed by the pleadings, claim the value of the filling station improvements. (6) Plaintiffs purchased the property with knowledge of the Cassilly lease, which provided for the removal of all improvements upon the termination of the lease, and by their petition plaintiffs charge defendant with a breach of the covenant to "clear off said lease as an encumbrance." Having knowledge of the lease by which the improvements remained personalty, they cannot recover the value of improvements in this suit upon the covenants in the deed. 58 A. L. R., pp. 1357-8, note; Priestly v. Johnson, 67 Mo. 632; Pile v. Holloway, 129 Mo.App. 593; Muehling v. McGee, 168 Mo.App. 675; Cox v. Kinney, 212 Mo.App. 522. (7) The court properly refused plaintiff's instruction C. (8) Instruction D is erroneous: (a) In that it tells the jury that under Cassilly's lease, upon termination, he was entitled to receive "one-half of the cost of improvements," when, in fact, said lease (Plaintiffs' Exhibit E) did not so provide, but provided for payment of a pro rata cost; and (b) said instruction directed a verdict for plaintiffs for the value of the improvements. Said instruction was further erroneous in that it did not permit the jury to take into consideration the question whether or not plaintiffs had knowledge of the Cassilly lease and whether or not it was the intention of plaintiffs and defendant that such improvements passed by the deed. See authorities cited under Point II. (9) Instruction E was properly refused, in that it directs the jury that they may allow plaintiff $ 3,968, if they found that it was necessary to pay Cassilly said sum to get Cassilly to quit the premises, and that by so doing plaintiffs avoided a greater loss. Said instruction comments on the evidence, does not set forth the proper measure of damages or elements of damage to which plaintiffs are entitled; and whether or not plaintiffs avoided a greater loss by payment of said sum is immaterial, the measure of damages being what sums plaintiffs were reasonably required to expend to remove the encumbrance.
This is an action to recover damages on account of the alleged breach of covenants in a warranty deed, by which the plaintiffs, who were grantees, are alleged to have suffered a loss. There was a verdict and judgment for defendant, and plaintiffs have appealed.
James J. O'Brien, one of the plaintiffs, purchased the...
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