Chinn v. Wagoner

• Court: Court of Appeal of Missouri (US)
• Citation: 26 Mo.App. 678
• Parties: BENJAMIN S. CHINN, Appellant, v. SYLVANUS WAGONER, Respondent.
• Decision Date: 04 June 1887

26 Mo.App. 678

BENJAMIN S. CHINN, Appellant,
v.
SYLVANUS WAGONER, Respondent.

Court of Appeals of Missouri, St. Louis.

June 4, 1887

APPEAL from the Greene County Circuit Court, JAMES R. VAUGHAN, Judge.

Reversed and remanded.

RATHBUN, TRAVERS & RATHBUN, for the appellant: This suit is based upon the agreement of the defendant, contained in his deed, to satisfy the Ullmann deed of trust, and fraud in failing to satisfy it, and selling the land subject to it, and not for breach of the covenant against an incumbrance, and there is a broad difference between a contract to discharge or acquit from a debt, and one to discharge or acquit from damage by reason of it. 2 Sutherland on Damages, pp. 329 and 330. This is a covenant to pay the Ullmann debt. Shelton v. Pease, 10 Mo. 473; Thomas v. Allen, 1 Hill 146; Post v. Jackson, 17 Johns. 239. It is not necessary in this case that the plaintiff should have been evicted, or that he should first pay the Ullmann mortgage. Scoby v. Finton, 39 Ind. 275, and cases cited; Merritt v. Wells, 18 Ind. 171; Johnson v. Britton, 23 Ind. 105; Manchan v. Smith, 10 Ohio St. 384; Ex Parte Negres, 7 Wend. 499; Webb v. Pond, 19 Wend. 423; Deval v. McIntosh, 23 Ind. 529. The covenant must be performed according to the intention of the parties. In this case the plaintiff and the defendant both understood that the defendant was to satisfy the Ullmann mortgage at once, and release the land from it; this is the covenant. Marvin v. Stine, 2 Cow. 780; Bull v. Follett, 8 Cow. 170.

J. T. WHITE, for the respondent: A covenant to pay a preë xisting debt, no time being mentioned, means that payment shall be made when the debt becomes due. Butler v. Maurry, 52 Mo. 497; 2 Parson on Cont. 535; Studwell v. Terret, 4 Bosw. 520; Brown v. Brown, 1 West. Rep. 128. The general rule is, that no right of action accrues on covenants against incumbrances in favor of the vendee of land, until he has suffered an ouster, or has been compelled to extinguish the incumbrance. Hunt v. Marsh, 80 Mo. 396; Taylor v. Priest, 21 Mo.App. 685; Rawle on Covenants, 134; 2 Sutherland on Damages, 311. And the damages claimed to have been suffered by the plaintiff are entirely too remote to warrant a recovery. Sedgwick on Damages, 112; Jones v. Nathop, 1 A. 435; Pitcher v. Livingston, 4 Johns. 10. The authorities clearly sustain the court below in determining that it is merely a covenant against damages, and damages must be proven before recovery can be had. Griswold v. Shelleck, 15 N.W. 151; Linder v. Lake, 6 Iowa 164; Leonard v. Bishop, 42 Wis. 470; Wilson v. McEvoy, 25 Cal. 169; 2 Sedgwick on Damages (7 Ed.) 12 and 13, note a; Myers v. Roderick, 5 A. 652, 664; Ewing v. Reiley, 34 Mo. 113. The deed of the defendant and the deed of trust executed at the same time by the plaintiff, constitute an entire contract. The covenants in both were mutual and dependent, and the plaintiff could not recover until he showed performance of his part. 2 Wait's Act. & Def., p. 363, sect. 2, and cases cited; Cunningham v. Morrel, 10 Johns. 203; Tomkins v. Elliot, 5 Wend. 496, cases cited, and note.

OPINION

ROMBAUER, J.

This action is founded upon the following facts alleged in the plaintiff's petition:

The plaintiff, in January, 1884, bought of the defendant a tract of land for two thousand dollars, of which sum he paid five hundred and sixty dollars in cash and property, and executed his notes for the residue secured by deed of trust on the premises, of which notes the amount of one hundred and fifty dollars was subsequently paid, making the entire payment seven hundred and ten dollars.

The tract thus purchased was part of a larger tract, and such larger tract was, at the date of the purchase, subject to another record incumbrance by mortgage to one Ullmann, for fifty-five hundred dollars, of which, the sum of three thousand dollars remained unpaid at the date of the trustee's sale hereinafter mentioned. The deed from the defendant to the plaintiff was a deed of warranty with statutory covenants, containing a special covenant and agreement to pay off and discharge this prior incumbrance of fifty-five hundred dollars. The plaintiff avers that he bought the land upon the express agreement by the defendant that the Ullmann incumbrance was to be paid off presently; that he paid the cash and executed the notes on the faith of such agreement, and went into possession of the land, and made valuable improvements thereon.

The petition further states that the land was actually worth twenty-five hundred dollars, and that the plaintiff, but for the fact of the Ullmann mortgage remaining unsatisfied, could have sold it for that sum; that the defendant, with a design to cheat and defraud the plaintiff out of the...