Brand v. Hough

• Decision Date: 25 November 1918
• Docket Number: No. 2224.,2224.
• Parties: BRAND et al. v. HOUGH.
• Court: Missouri Court of Appeals

206 S.W. 425

BRAND et al. v. HOUGH.

No. 2224.

Springfield Court of Appeals. Missouri.

November 25, 1918.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Suit by D. F. Brand and another against A. E. Hough. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

M. R. Lively, of Webb City, for appellants.

R. A. Mooneyham, of Carthage, for respondent.

FARRINGTON, J.

This suit was brought by the plaintiff to recover damages on a covenant against incumbrances contained in a warranty deed made to plaintiff by the defendant. It grows out of an issue of fact as to whether certain taxes have been paid which the warranty deed covenants were paid. The plaintiff introduced the warranty deed, which contained the proviso:

"That the said premises are free and clear of any incumbrances done or suffered by them or those under whom they claim and that they will warrant and defend the title to said premises unto the said parties of the second part, and unto their heirs and assigns forever, against the lawful claim and demands of all persons whomsoever, except all taxes of 1913 and subsequent years."

The deed was made, acknowledged, and delivered on the 2d day of April, 1913. The plaintiff further introduced in evidence demands made on him by the county collector of revenue of Jasper county, the county in which the land was situated, one if which threatened suit unless the taxes for the year 1911 were paid. The plaintiff paid the taxes, amounting to $29.01, and introduced the receipt.

The defendant introduced two witnesses, one Augustus W. Hough, who, as shown by the abstract, in the course of his testimony said: "I remember you telling the collector over the phone that, if Riley did not pay the taxes, I would." It is not shown, but the inference is, that this remark was addressed by him to Attorney Lively, who was representing the plaintiff and trying to collect the amount of the taxes which he (the plaintiff) afterwards paid, and for which this suit is brought.

The defendant further introduced witness J. A. Riley, who testified that, on April 1st, Mr. Hough came to his office and presented him a copy of the abstract of the lots contained in the deed; that he (Riley) had a statement showing the amount of state and county taxes that were due against the lots for the years 1911 and 1912, and it was stated that these taxes must be paid; that he went to the city collector on 3d of April and paid up all the city taxes, and the next day went to Carthage and paid the county taxes for 1911, which would be on the 4th of April, 1913; that a receipt was mailed to him, as he puts it for the year 1912, and "I expect for 1911." He does not know what became of the receipts, but that his custom was to turn them over to the owners, and that he is sure he did this and turned them over to Mr. Brand.

Mr. Lively, attorney for the plaintiff, testified that he, in trying to settle for the taxes wrote Mr. Hough and that he came to his office and stated that he had paid the money to Mr. Riley at the time the abstracts were made, and that Riley had claimed he had paid the city and county taxes, but that he did not have the receipts; that he again called Hough to his office, and Hough asked him not to bring suit or do anything, and that he would call up the county collector and make arrangements so...