Bohlcke v. Buchanan

• Decision Date: 29 April 1902
• Citation: 68 S.W. 92,94 Mo. App. 320
• Parties: BOHLCKE v. BUCHANAN.
• Court: Missouri Court of Appeals

68 S.W. 92

94 Mo. App. 320

BOHLCKE v. BUCHANAN.

Court of Appeals of St. Louis, Missouri.

April 29, 1902.

CONVEYANCES — COVENANT TO DISCHARGE INCUMBRANCE — FINDING — JUDGMENT — MEASURE OF DAMAGES.

1. In an action by a grantee against the grantor for the latter's failure to perform his covenant to discharge an incumbrance on the premises conveyed, it appeared that the grantee had been the owner of the premises, subject to a deed of trust; that the property was conveyed to the grantor, who took up the debt secured by the deed of trust, and delivered to the creditor his own note and a deed of trust; that thereafter the grantor conveyed to the grantee an undivided one-half of the premises, with a covenant to pay the deed of trust, which he failed to do. The court, on conflicting evidence, found that the consideration of the conveyance to the grantor was his agreement to pay such debt, and to execute to the grantee a deed of an undivided one-half of the premises. Held, that the finding authorized a judgment against the grantor on his covenant to pay the deed of trust; the rule that the grantee in a deed reciting that he assumes to pay an incumbrance becomes the principal, and the grantor the surety, being inapplicable.

2. In an action against a grantor for a failure to perform his agreement to discharge an incumbrance on the premises conveyed, brought after the foreclosure of such incumbrance, where the grantee has never been in possession of the premises under the conveyance, the measure of damages is the amount of the incumbrance.

3. The grantee in such case may recover such damages without first paying the incumbrance; the covenant being absolute, entitling him to a performance of the contract in the manner and at the time stipulated, regardless of damages.

Appeal from circuit court, Stoddard county; James L. Fort, Judge.

Action by Catherine Bohlcke against James W. Buchanan. From a judgment for plaintiff, defendant appeals. Modified.

Mozley & Wammack, for appellant. Geo. Houck, D. R. Cox, and Smith & Anthony, for respondent.

GOODE, J.

On the 30th day of November, 1895, James W. Buchanan and Terry A. Mercer and their wives executed a deed to Catherine Bohlcke for an undivided one-half interest in a section of land in Stoddard county. Besides the statutory covenants imported by the words "grant, bargain, and sell," and express covenants: First, of indefeasible seizin; second, of good right to convey; third, against incumbrances; and, fourth, of warranty, — said deed also contained the following special covenant: "It is understood that there is a deed of trust for twelve hundred dollars on the above land, in favor of Herbert Harris, which the parties of the first part agree to pay." Prior to September, 1895, the same section of land was owned by Henry C. Bohlcke, husband of said Catherine Bohlcke, or by Catherine herself. The record is not quite clear whom the title was in, but it seems to have been regarded and treated as the wife's land. It was incumbered by a deed of trust for $1,200 held by the McCormick Harvesting Machine Company or by Herbert Harris. As well as we can tell from the abstract of the evidence, the note was given to the McCormick Company, but was owned by Harris. When it fell due, Harris insisted on his money, which the Bohlckes were unable to pay. Harris agreed to grant an extension if Buchanan & Mercer, who were partners in the real estate business in Dexter, Mo., would stand good for the debt. Bohlcke applied to Buchanan about the matter, and an agreement was made, the exact terms of which are contested, by which the entire section of land was conveyed to Buchanan & Mercer, and the latter parties executed their note for $1,200 to Harris, dated the 3d day of September, 1895, due three years after date, and secured the note by a deed of trust on the land, in which F. L. Scofield was trustee, and Herbert Harris beneficiary. Said deed of trust was foreclosed, the debt not being paid by Buchanan & Mercer, and Catherine Bohlcke's land was thereby lost to her. On the 30th day of November the warranty deed containing the covenants which are the basis of this action was executed by Buchanan & Mercer to Catherine Bohlcke for an undivided one-half interest in said section. Mercer moved to Oregon, but, before going, conveyed to his partner, Buchanan, his undivided one-fourth interest in the land; and the latter was sued, after the foreclosure sale, for his failure to keep his covenants.

The exact issue of fact between the parties to this litigation is...