Blondeau v. Sheridan

• Decision Date: 30 April 1884
• Citation: 81 Mo. 545
• Parties: BLONDEAU et al. v. SHERIDAN, Administrator, Appellant.
• Court: Missouri Supreme Court

81 Mo. 545

BLONDEAU et al.

v.SHERIDAN, Administrator, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Buchanan Circuit Court.--HON. WM. H. SHERMAN, Judge.

REVERSED.

Strong & Mosman for appellant.

The court erred in failing to render judgment of non prosequi, in defendant's favor and against plaintiffs, when so requested, after the jury were sworn to try the cause, and after the petition and answer were read to the jury. R. S., §§ 3677, 3678; Ennis v. Hogan, 47 Mo. 515. The court erred in permitting plaintiffs to introduce evidence, against objection of defendant, that the petition did not state facts sufficient to constitute a cause of action. There is no allegation of breach of covenant “for further assurance,” nor facts stated in the petition constituting such breach. Armstrong v. Darby, 26 Mo. 517; Rawle Cov., (3 Ed.) 193, note, and citations; Rawle Cov., 195, 199, 200; Miller v. Parsons, 9 Johns. 336. The petition shows no breach of the covenant of seizin. Rawle Cov., (3 Ed.) 51; Kellogg v. Malin, 50 Mo. 499; 2 Wash. Real Prop., (3 Ed.) 345; Cook Co. v. Railroad Co., 35 Ill. 460; Wash. on Easement, (3 Ed.) 14; Winslow v. King, 14 Gray 321. The facts pleaded do not show breach of covenant “warranty,” which is a covenant for quiet enjoyment. 4 Kent Com., (8 Ed.) 530. Which is broken only by eviction or its equivalent. 3 Wash. Real Prop., (3 Ed.) 398. Is a personal covenant. Ib., 399. Mere limitations or restrictions upon the use of land are not evictions. The title remains in the grantee, as also the possession. A covenant of warranty is not a covenant against incumbrances. See note to Sanderlin v. Baxter, 44 Am. Rep. 170. The petition does not state facts so as to enable the damages to be measured, or for breach of “seizin,” or that of warranty. Sedgwick on Dam., (3 Ed.) 172; 3 Wash. Real Prop., (3 Ed.) 419; Dickson v. Desire, 23 Mo. 166; Long v. Mathews, 23 Mo. 438; Hutchins v.Roundtree, 77 Mo. 500. The petition does not state facts such as to enable the court and jury to ascertain and measure the damages as for a breach of covenant against the incumbrance created by a permanent easement, such as the party wall described. 3 Wash. Real Prop., (3 Ed.) 421; Harlow v. Thomas, 15 Pick. 66. A party wall is simply an easement. “It is not a freehold in the soil.” 2 Wash. Real Prop., 276; Ritgee v. Parker, 8 Cush. 145; Prescott v. Trueman, 4 Mass. 627; Cary v. Daniels, 8 Met. 482. Only actions on covenants of seizin and warranty survive ten years after breach. R. S., § 3229. Actions for breach of covenant against incumbrances must be brought within five years after breach. R. S., § 3230. If we allow plaintiffs to be proper parties plaintiff, (which we do not,) they are barred, because they show, on the face of the petition that their right of action accrued, upon their own theory of the case, May 29th, 1875; and their suit was begun January 18th, 1881. But they are not proper parties. The covenant against incumbrances is personal. It does not run with the land. It is broken the instant the deed is delivered. This incumbrance did exist when McGee conveyed to plaintiff's grantor in 1873. “If one of two adjacent owners covenant with the other, if he would erect a party wall the former would pay the latter for one-half of it, whenever he should use it, held a personal covenant, and not to run with the land so as to bind the purchaser of the covenantor who should erect a building against the party wall. 2 Wash. Real Prop., 263; Black v. Isham, 16 Am. L. Reg. 8; Weld v. Nichols, 17 Pick. 543; Cole v. Hughes, 54 N. Y. 444. Lutz, the grantee of Hartwig, could not, therefore, have recovered from plaintiffs. Their payment to him was voluntary. “A permanent easement is as much an incumbrance when the deed is made as it ever can be, and of course detracts from the value of the estate at the time of the conveyance.” Wash. Real Prop., 391, 392. “Being in praesenti it is broken as soon as made.” “““Covenants in praesenti, being broken as soon as made, cannot, for obvious reasons, run with the land to subsequent owners, so as to entitle them to sue for breach thereof.” 3 Wash. Real Prop., (3 Ed.) 394. The court erred in overruling defendant's several objections to items of evidence. No sufficient ground was laid for the secondary evidence of contract between McGee and Hartwig. R. S., § 674; Geary v. City of Kansas, 61 Mo. 378; Parkinson v. Caplinger, 65 Mo. 294. The court erred in refusing to instruct as prayed, “that under the pleadings and evidence the plaintiff could not recover.” Plaintiffs must recover, if at all, on the cause of action stated in their petition. “The only covenant implied in the words, ‘grant, bargain and sell,’ which runs with the land, is that for further assurance.” “The word “‘assigns,’ as used in our statute, is limited to that covenant.” Collier v. Gamble, 10 Mo. 467. No breach of that covenant is pleaded. Plaintiffs then are not “assigns” of McGee, nor was Lutz “assign” of Hartwig. Railroad Co. v. Morgan, 72 Ill. 158; Cole v. Hughes, 54 N. Y. 444. Action for breach of “““seizin” or of “warranty” must be brought within five years. Lawless v. Collier, 19 Mo. 480; Hall v. Bray, 51 Mo. 292. The petition and evidence showed that plaintiffs were not assigns of McGee, as meant by that word in either his deed to M. S. Bradley, or in his contract with Hartwig, within the meaning of the statute in respect to the wall, also that Lutz never became the assign of Hartwig, as meant in the contract between Hartwig and McGee. Pomeroy v. Railroad Co., 25 Mo. 643; Dixon v. Railroad Co., 3 A. & E. R. R. cases 201; Tenbrooke v. Sahke,77 Pa. St. 392; Cole v. Hughes, 54 N. Y. 444; Todd v. Stokes,10 Pa. St. 155; Gilbert v. Drew,9 Pa. St. 219; McGadden v. Johnson,72 Pa. St. 335; 65 Me. 591.

HENRY, J.

On January 18th, 1881, plaintiffs filed in the probate court of Buchanan county their demand for $433.36, against said estate, and, at the April term 1881, the court found against plaintiffs who then appealed to the circuit court, where they filed an amended petition, alleging, in substance, that McGee died in May, 1880, and that Sheridan administered on his estate in August, 1880. That plaintiffs are, and since 1872, have been partners. That on the 10th of January, 1873, McGee conveyed by deed to Mathias Bradley the north half of lot No. 10 of block 21, in the town of St. Joseph, in the granting clause thereof employing the words “grant,” “bargain” and “sell,” the deed containing, also, an express covenant that the grantor, his heirs and executors, etc., would warrant and defend the title to said real estate against the lawful claims of every person whatever. That prior to that time, on the 29th of March, 1872, McGee, the grantor, entered into a written agreement with one Hasting, by which he granted to Hasting, who owned the adjoining lot, the right to extend and build one-half of the thickness of a wall to be erected by said Hasting on the line between said lots, over and on the lot of said McGee (said lot No. 10) the dimensions of said wall to be footing four feet six inches in thickness, upper wall two feet thick, brick wall one foot six inches thick and eighty feet in length, one half of which the entire length and height to extend over and on lot 10, with the further stipulation, that said “McGee, or his assignee should at any time, paying one-half the cost of said wall or such part thereof to the said Hasting or his assignee, have the right and privilege of building to and using said wall and make it constitute one of the walls he may choose to erect adjacent thereto, and may use said wall for all reasonable purposes in erecting and constructing such building.” That said agreement was duly acknowledged and was, on 9th of April, 1872, filed for record in the recorder's office of said county. That Hasting erected the wall mentioned in said agreement before McGee conveyed to Bradley.

That on the 15th day of February, 1875, plaintiffs each became the owner of an undivided half of said lot No. 10 by virtue of conveyances from Mathias Bradley and his grantees, and afterwards mutually agreed to hold, and have ever since held the same as partnership property. That McGee, at the time of the conveyance to M. S. Bradley, was not seized of an indefeasible estate in fee simple in said real estate, that it was not free from incumbrance, etc., and that McGee had not warranted or defended the title, but on the contrary, on the 29th of May, 1875, Lutz, assignee of Hasting, entered said lot No. 10 and evicted plaintiffs from that part of said lot upon which said wall stood, having the right to do so by virtue of the agreement aforesaid, and that plaintiffs were compelled to, and did on the 29th of May, 1875, pay to said Lutz $336.46, in order to extinguish his right and title to said part of said lot, and to said wall to the length of sixty-two feet and eight inches, and that it was worth that sum. And asked judgment for $433.46.

The answer was a general denial, the statute of limitations, and that plaintiffs voluntarily paid the money to Lutz. Plaintiffs obtained a judgment from which defendant has appealed.

At the trial after the jury was sworn, defendant called attention of the court to the fact, that plaintiffs had filed no replication, and demanded a judgment of non pros. against them, which the court refused, and permitted plaintiffs to file their replication.

Section 3677, Revised Statutes, provides that: “If the plaintiff shall fail to file his replication, or other pleading within the time prescribed by law, or the rules of practice of the court * * judgment of non pros. shall be given against him.” But by the next section it is provided, that such judgment, for good cause shown, may be set aside at any time during the term, upon such terms as shall be just. In Ennis v. Hogan, 47 Mo. 513, it was held that, if the failure to reply was the result of accident, or mistake, the judgment should have been set aside,...