City of St. Louis v. Bissell

• Decision Date: 31 March 1870
• Citation: 46 Mo. 157
• Parties: THE CITY OF ST. LOUIS, Respondent, v. LEWIS BISSELL, Appellant.
• Court: Missouri Supreme Court

46 Mo. 157

THE CITY OF ST. LOUIS, Respondent,

v.LEWIS BISSELL, Appellant.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Cline, Jamison & Day, for appellant.

The ultimate extent of the vendor's responsibility, under all or any of the usual covenants in his deed, is the purchase money, with interest. If the eviction be only of a part of the land purchased, the damages to be recovered under the covenant of seizin are a ratable part of the original price, and they are to bear the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole tract. (4 Kent's Com. 477; Dickson v. Desire's Adm'r, 23 Mo. 151.)

Samuel Knox, for respondent.

The measure of damages in an action on a covenant against encumbrances is the amount necessary to remove the encumbrances. (Thayer v. Clement, 22 Pick. 490; Willets v. Burgess, 34 Ill. 494; Green v. Tillman, 20 N. Y. 191; Giles v. Dugan, 1 Duer, 331; Stowell v. Bennett, 34 Maine, 422; Porter v. Bradley, 7 R. I. 538; Pratt v. Boleman, 6 Cush. 549; Kelley v. Lowe, 18 Maine, 244; Leffingwell v. Alcott, 10 Pick. 204; 20 Pick. 474; Sedgw. on Dam. 178.)

WAGNER, Judge, delivered the opinion of the court.

Bissell, by a general warranty deed, containing a covenant against encumbrances, dated July 18, 1867, conveyed to the city of St. Louis 95 85/100 acres of land for the consideration of $95,850, which was duly paid to him by said city. The deed contained this clause: “Excepting and reserving to the temporary lessees of Lewis Bissell, located on the bank of the Mississippi river, the right to remove and carry away the buildings by them respectively erected thereon.”

An act of the Legislature, entitled “an act to enable the city of St. Louis to procure a supply of wholesome water,” approved March 13, 1867, authorized the city of St. Louis, through its board of water commissioners, to acquire lands, etc., necessary for constructing reservoirs for the waterworks. Section 18 of the said act empowers the commissioners, if they can not agree with the property-holders as to the amount of the compensation to be paid, to institute legal proceedings for the condemnation of the property desired.

The commissioners, in the prosecution of their work, told Bissell that it was necessary for them to have the possession of the land covered by the leases. He afterward told them that he could make no arrangements with the lessees, and that they could make better terms than he could. He authorized them to go ahead and condemn the leases, but said nothing as to the mode of condemnation. It seems that the lessees refused to make any satisfactory arrangements, or to remove the buildings, and under the law three disinterested freeholders were appointed by the Circuit Court to assess the damages. These damages being objected to by the lessees, a trial was had in the Circuit Court before a jury, which resulted in verdicts assessing the total amount of $3,838.50 to the respective lessees, together with costs. An attorney's fee was also allowed, but as that was afterward remitted, it will be unnecessary to further consider it here. These damages were paid by the city, and this suit is now brought against Bissell to recover them, as for a breach of his covenant against encumbrance. The Circuit Court gave judgment for the city.

It is admitted that the leases were all confined to an area of land covering about 1 264/1000 acres, and that the value of that portion of the property covered by the leases, either in reference to its market value or to its value as determined by the consideration in the deed from Bissell to the city, was the sum...