Blevins v. Smith
| Decision Date | 31 March 1891 |
| Parties | Blevins et al. v. Smith, Appellant |
| Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court. -- Hon. C. W. Sloan, Judge.
Reversed and remanded.
S. P Sparks for appellant.
(1) The existence of an inchoate right of dower in Mrs. Collier, at the time appellant entered into the covenants, at most constituted only a technical breach of the covenants against incumbrances, and only nominal damages were recoverable. Sedgwick on Damages [4 Ed.] 195, note; 4 Kent, Com., art. 4; Rawle on Cov. for Title, 541, 571; Collier v Gamble, 10 Mo. 466; Walker v. Deaver, 79 Mo 664; Priest v. Deaver, 22 Mo.App. 376; Dickson v. Desire, 23 Mo. 151; Wyatt v. Dunn, 93 Mo. 459; Runnells v. Weber, 59 Me. 488; 2 Suth. on Dam. [1 Ed.] p. 327; Hazelrig v. Huston, 18 Ind. 481; Lewis v. Lewis, 5 Rich. L. 12; Nyce v. Obertz, 17 Ohio 71; Bender v. Fromberger, 4 Dall. (Pa.) 440; Durrett v. Piper, 58 Mo. 551. First. The only covenant (if any were) broken by appellant in his deed was that against incumbrances done or suffered by him, or those under whom he claimed, implied in the words "grant, bargain and sell." Durrett v. Piper, supra; R. S. 1879, sec. 675. Second. The existence of this inchoate right of dower was not an act "done or suffered by appellant, nor those under whom he claimed." R. S. 1879, sec. 675; Walker v. Deaver, 79 Mo. 664; 4 Kent, Com., sec. 440; Armstrong v. Darby, 29 Mo.; Bender v. Formberger, supra; Rawle, Cov. Title, pp. 541, 575; Alexander v. Schrieber, 10 Mo. 460. Third. But conceding that the inchoate right of dower of Mrs. Collier constituted an incumbrance done or suffered by defendant or those under whom he claims -- while this covenant was broken as soon as made, for which an action would instantly lie until there had not been an actual loss, eviction or its equivalent consequent thereon, and only nominal damages could be recovered. Walker v. Deaver, supra; Hunt v. Marsh, 80 Mo. 396; Morgan v. Railroad, 63 Mo. 129; Matheny v. Mason, 73 Mo. 677. Fourth. Mrs. Collier's inchoate right of dower was not title paramount capable of enforcement; it was merely contingent, and possessed no value -- a mere possibility -- an expectancy. Durrett v. Piper, supra. Fifth. The covenant sued on was not that the title conveyed should be merchantable, i. e., such as might be acceptable to a purchaser, but that plaintiff should not be damaged in the possession by being evicted or disturbed. Her inability to find a purchaser who would buy the land with this inchoate right of dower outstanding was not a substantial breach of this covenant, and nominal damages only are recoverable; for only on the dower interest becoming consummate by the death of the husband can any paramount title arise, or any eviction become possible. By what standard can the right of an inchoate right of dower be measured? Willetts v. Burgess, 34 Ill. 494. Sixth. When a grantee seeks to recover damages for a breach of the covenant against incumbrances, it devolves on him to show that the incumbrance discharged was such that the grantor was bound to pay off. Bland v. Thomas, 3 S.W. (Ky.) 595. Seventh. At the time of the institution of this suit, plaintiff had parted with her title and possession, and she could not maintain this action on covenants which run with the land that had inured to another by virtue of her deed. Chambers v. Smith, 23 Mo. 174. (2) The sale for taxes barred the inchoate right of dower of Mrs. Collier. First. It was within the power of the legislature to pass laws which would defeat an inchoate right of dower. Cooley on Const. Lim., p. 445; Morrison v. Rice, 29 N.W. 168; Tiedeman, Lim. Police Powers, sec. 117, pp. 341, 351. Second. The proceeding to enforce taxes by the state is always analogous to the exercise by it of the right of eminent domain, which it has always been held bars dower. Brown v. Austin, 41 Vt. 262; Tiedeman, Real Prop., sec. 132; Robbins v. Barrow, 32 Mich. 36; 1 Wash. Real Prop. [Ed. 1868] 220; Moore v. City, 8 N. Y. App. 110; Finch v. Brown, 3 Gilm. 448; Jones v. Devore, 8 Ohio St. 430. Third. The supreme court of Missouri has decided that a wife is not a necessary party to a partition proceeding when the husband is the owner, and that, notwithstanding she is not a party, her inchoate right of dower is barred. Lee v. Lindell, 22 Mo. 202. Fourth. A tax sale is clearly not within the saving provisions of section 2197. Fifth. The amount paid by Mrs. Blevins for attorneys' fees in negotiating the purchase was not a proper element of the damages. No suit had been brought, and the court erred in admitting evidence to establish it, and refusing appellant's instruction to the court sitting as a jury to disregard it in arriving at their verdict, numbered 3.
A. B. Logan and W. W. Wood for respondents.
(1) When respondent discharged the incumbrance created by the inchoate right of dower, the breach of warranty became substantial and she was entitled to recover the reasonable amount paid. Durrett v. Piper, 58 Mo. 551; Ward v. Ashbrook, 78 Mo. 515; 1 Scribner on Dower, secs. 2, 4; Prescott v. Truman, 4 Mass. 627; Shearer v. Ranger, 22 Pick. 447; Bigelow v. Hubbard, 97 Mass. 195; Harrington v. Murphy, 109 Mass. 299. (2) The existence of the inchoate right of dower is an incumbrance covenanted against by the use of the words "grant, bargain and sell." Ward v. Ashbrook, 78 Mo. 515; Williamson v. Hall, 62 Mo. 405. It will be noted that the authorities cited by appellant are all cases arising under the statute, as it existed prior to the revision of 1879. The statute was amended, however, in 1879, so as to make the grantor liable for incumbrances "done or suffered" by any person under whom he claims. Rev. Code, 1845, p. 221, sec. 24; R. S. 1855, chap. 32, sec. 14; G. S. 1865, p. 444, sec. 8; R. S. 1879, sec. 675. (3) The real point at issue, as we conceive it, is whether the mere fact of the incumbrance not being capable of present enforcement would debar the plaintiff from removing it, and recovering the reasonable amount paid. That it would not, is, we think, abundantly established by the authorities cited. Sedgwick on Dam. 195 [4 Ed.] top and note; Collier v. Gamble, 10 Mo. 472; Dickson v. Desire, 23 Mo. 163. (4) Under a strict covenant of seizin it is necessary to prove an eviction, but under the covenant of indefeasible seizin or the covenant against incumbrances implied by the statute as amended in 1879, it is not necessary to prove an eviction. It is only necessary to prove that the estate conveyed has been defeated, or the right to defeat it has been extinguished, or the incumbrance removed. Collier v. Gamble, 10 Mo. 467; Shelton v. Pease, 10 Mo. 473; Mosely v. Hunter, 15 Mo. 322; Dickson v. Desire, 23 Mo. 151; Walker v. Deaver, 79 Mo. 664. (5) The damages for the breach of a covenant against incumbrances depends upon the value of the incumbrance without reference to the value of the land or the purchase money. The covenantee is entitled to recover what he has paid to extinguish the incumbrance if he has paid a reasonable and fair price. St. Louis v. Bissell, 46 Mo. 157; Kellogg v. Molin, 62 Mo. 429; Henderson v. Henderson, 13 Mo. 151. (6) The fact that plaintiff had parted with her title, at the time of the commencement of her suit, is immaterial as affecting her right to recover on the covenants. She was the owner at the time she removed the incumbrance. (7) The tax sale did not convey the dower. There are two theories upon that subject. The one is, that it is a proceeding against the land itself, and has nothing to do with the previous chain of title; that it is a breaking up of all previous titles. Jones v. Devore, 8 Oh. St. 431. The other, that it is a derivative title, the purchaser taking only such title as the party to the proceedings had. This court in construing the statutes has adopted the latter theory. Gitchell v. Kreidler, 84 Mo. 472; Granby v. Casey, 93 Mo. 595. Under a statute in almost the precise words of section 2197, Revised Statutes, 1879, it has been held by two eminent text-writers, that the laches of the husband in permitting his land to sell for taxes would not debar the wife of her dower. Black. on Tax Titles [2 Ed.] 549; Scrib. on Dower [2 Ed.] 809, 820.
OPINION
This is an action on a covenant of warranty, made by appellant to the respondent, Mrs. Sarah C. Blevins. The land conveyed is the south half of the southeast quarter, section 6, township 46, range 25, Johnson county, Missouri.
The evidence showed title in appellant Smith, at the date of conveyance to respondent, except an outstanding inchoate right of dower in Mrs. Mary E. Collier, the wife of Daniel Collier. Appellant deduced his title from Daniel Collier, by virtue of a tax sale and deed under the act of 1877. It was admitted that Daniel Collier was still alive at the time of the commencement of the suit. After respondent obtained her deed from appellant, she attempted to mortgage the land and failed because of this outstanding inchoate dower right in Mrs. Collier. She thereupon purchased this right for $ 150, and brought this suit against appellant for that amount.
Appellant assigns two grounds for reversal. One that the court erred in permitting respondent to recover more than nominal damages for the breach of the covenant by reason of the inchoate dower of Mrs. Collier remaining outstanding, and, secondly, that the court erred in not holding that the tax sale and deed conveyed the land absolutely, and by it Mrs. Collier's inchoate right of dower was entirely barred, and, of course, could constitute no incumbrance.
We all agree that the first contention of appellant...
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