Chambers' Adm'r v. Smith's Adm'r

• Decision Date: 31 March 1856
• Citation: 23 Mo. 174
• Parties: CHAMBERS' ADMINISTRATOR, Plaintiff in Error, v. SMITH'S ADMINISTRATOR, Defendant in Error.
• Court: Missouri Supreme Court

23 Mo. 174

CHAMBERS' ADMINISTRATOR, Plaintiff in Error,

v.SMITH'S ADMINISTRATOR, Defendant in Error.

Supreme Court of Missouri.

March Term, 1856.

1. The statutory covenants of indefeasible seizin, against encumbrances, &c., contained in the words “grant, bargain and sell,” are covenants running with the land. (See Dickson & Gantt v. Desire's adm'r, 23 Mo. 151.)

2. A demand against the estate of an intestate on account of the breach of the statutory covenant of indefeasible seizin, and against encumbrances contained in a deed made by such intestate, is not barred by not having been exhibited against the estate within three years after the granting of letters of administration, where the right of substantial recovery did not accrue before the lapse of the said term.

3. A. owning a lot of ground gives a bond to convey the same to B. upon the payment by B. of the sum of $1500, within five years; this bond is duly recorded; afterwards, A. “grants, bargains and sells” the same lot to C., and C., by a deed of the same tenor, conveys to D.; B. afterwards brings suit for the specific performance of the bond against the administrator of A., and obtains a decree directing said administrator to make a deed to B., which is accordingly done; this deed is dated more than three years after the date of the letters of administration granted to said administrator; held, that the right of D. to recover for the breach of the covenants contained in the words ““““grant, bargain and sell” in the deed of A. to C., is not barred by a failure to exhibit the claim against the estate of A. before the expiration of the term of three years from the date of the letters of administration. No demand accrued against the estate of A. until the date of the administrator's deed.

Error to St. Louis Land Court.

This is an action commenced September 14, 1853, to recover damages for the breach of the covenants of seisin and against encumbrances, contained in the words “grant, bargain and sell” in a deed of Thomas F. Smith, defendant's intestate, to one Elias B. Smith. This deed purported to convey in fee a lot of ground in the city of St. Louis, and was dated November 21st, 1843. It contained the words “grant, bargain and sell,” and was duly acknowledged and recorded. Elias B. Smith, by deed of the same tenor, dated March 11, 1844, conveyed the said lot to William Chambers. William Chambers died May 4th, 1849, and letters of administration upon his estate were granted to plaintiff, Thomas L. Sturgeon.

Prior to the said deed of Thomas F. Smith to Elias B. Smith, the former had made his bond to convey the same lot to one Sarah D. Todd, upon the payment by her within five years from the date of said bond, July 25th, 1843, of the sum of $1500, with interest. This bond was duly acknowledged and recorded September 15th, 1843. Under this bond, Sarah D. Todd entered into possession of the lot, and paid the annual interest for five years, and at the end of that time she paid over the principal, $1500, to T. F. Smith's administrator, and instituted proceedings in equity and obtained a decree, December 21st, 1848, directing the administrator of T. F. Smith to make a deed conveying the lot to herself. A deed was accordingly made by said administrator, dated December 28th, 1848.

Thomas F. Smith died December 15th, 1843, and letters of administration upon his estate were given to one Beckwith, December 23, 1843. He gave notice of his administration in due form of law. Beckwith died December 25, 1853, and C. C. Whittelsey was appointed administrator de bonis non of T. F. Smith's estate. There was no final settlement of the estate of the said Smith when this suit was brought or when the trial in this cause was had.

Defendant, Whittelsey, in his answer set up as a bar to this action the statutory limitation of three years, within which claims must be exhibited against an intestate's estate; also denies the assignment or transfer of the covenants sued on from Elias B. Smith to William Chambers. The court gave the following instruction to the jury: “The covenant in the deed from Thomas F. Smith to Elias B. Smith of seizin of an indefeasible estate in fee simple, free from all incumbrances, is a covenant in the present tense, and is broken, if at all, as soon as made; and if the holder of the covenant did not present the claim for allowance against the estate of the said T. F. Smith within three years after the date of the letters of administration, supposing that the administrator gave the required notice, the claim of the plaintiff, as stated in this suit, is barred;” whereupon the plaintiff voluntarily submitted to a nonsuit with leave to move to set the same aside. This motion having been made and overruled, the case is brought here by appeal. Exceptions were duly taken by plaintiff.

B. A. Hill, for plaintiff in error.

I. The code of 1849, art. 3d, authorizes the suit by the plaintiff as assignee of the covenants in the deed from T. F. Smith. The action must be prosecuted by the party in interest.

II. The principal question in this case arises upon the statutory limitation of three years, in the administration act. At the time the three years expired in December, 1846, the legal title was still in Mr. Chambers. The executory contract of Smith with Todd was subsisting as an encumbrance, and the case of Collier v. Gamble, (10 Mo. 472,) would only authorize the recovery of nominal damages; for it could not appear that the title would ever vest under the executory contract until the payment of the purchase money by Mrs. Todd. The title of Mrs. Todd did not become paramount to the title of Mr. Chambers until the execution of the deed under the decree in December, 1848; but yet it was a quasi encumbrance, which, upon the perfection of the legal title, related back to the date of the recording of the contract, August, 1843, and overrides our deed of November following. Unless this be so, William Chambers died seized in fee. But the recording of the contract raised an equity in Mrs. Todd against all subsequent purchasers, and that equity was, after the three years' bar, turned into a legal estate, and become a title paramount to ours. The case of Collier v. Gamble clearly recognizes the plaintiff's right to sue for the actual damages after the equitable title was turned into a legal estate. Upon what principle, then, can the right to recover nominal damages for the technical breach of the covenant, bar the plaintiff from recovering the actual damages occasioned by the subsequent total loss of the title? The contingency upon the happening of which the real damages ensued, could not be foreknown, for it was impossible to foresee whether Mrs. Todd would comply with her contract of purchase.

III. Was there any limitation after the first three years expired other than the general limitation; and if so, was the plaintiff, under the circumstances of this case, barred by the statute in the administration act? The bar must be created by statute or there is none. The true reason why the demand, which is not due, is not barred by the three years, after letters, is, because it is not a demand within the meaning of the act, as against the estate, until it becomes due....