Coleman v. Lucksinger

• Decision Date: 29 November 1909
• Citation: 123 S.W. 441
• Parties: COLEMAN v. LUCKSINGER.
• Court: Missouri Supreme Court

123 S.W. 441

COLEMAN v. LUCKSINGER.

Supreme Court of Missouri.

November 29, 1909.

1. APPEARANCE (§ 19) — JURISDICTION OVER PERSON.

Defendant's appearance and answer to the merits effectually waives any question of jurisdiction over his person.

2. VENUE (§ 5) — ACTION — COVENANTS.

At common law, no local action could be maintained out of the jurisdiction in which it arose, though depriving a party of all remedy, and in case of action by a remote grantee on a covenant running with the land, the covenantee's right of action was based on privity of estate, and not of contract, and the action was local and must have been brought in the place or county in which the land lies.

3. COURTS (§ 231) — APPELLATE JURISDICTION — TITLE TO REAL ESTATE.

To give the Supreme Court jurisdiction on the ground that the title to real estate is involved, it must appear that the title will be directly affected by the judgment of the court, and it will not suffice for it to be incidentally, collaterally, or even necessarily inquired into if the judgment can be satisfied by the payment of money.

4. VENUE (§ 5) — ACTION — COVENANTS.

Rev. St. 1899, § 562 (Ann. St. 1906, p. 591), provides for the venue of actions with reference to the residence of defendant, except as otherwise provided. Section 563 (page 592) provides for prosecution of ejectment and replevin in the county where the property is sought to be recovered or seized. Section 564 (page 593) provides that suits for possession of real estate, or whereby the title thereto may be affected, shall be brought in the county where the same or some part thereof is situated. Section 4345 (page 2392) provides for foreclosure of real estate mortgages in the county where any part of the mortgaged premises is situated. Section 4374 (page 2411) provides for suing in partition in the county in which the land sought to be partitioned is situated. Held, that in thus providing for every contingency as to bringing suits, the rule of the common law, which regarded an action for breach of covenants of seisin and warranty as local, was completely altered, and as to such action it no longer obtains in this state, and, title to real estate not being affected by such action within section 564, but only incidentally involved, it was properly brought pursuant to section 562 in the county where the defendant resided in this state, though the deed on which it was based conveyed lands in other states.

5. EVIDENCE (§ 35) — JUDICIAL NOTICE — LAWS OF OTHER STATES.

The courts of this state will not take cognizance of the laws of a foreign state which have not been pleaded or proven.

6. COVENANTS (§ 105) — ACTIONS FOR BREACH — WHAT LAW GOVERNS.

Where plaintiff, in an action for breach of covenants of seisin and warranty in a deed for lands in Texas, relies entirely on the Missouri decisions to support his claim, he must be held to have elected to rely on the laws of this state for recovery; and, in the absence of any attempt to show defendant's liability under the laws of Texas was otherwise than by the laws of Missouri, the latter laws will be applied in determining liability.

7. COVENANTS (§§ 62, 79) — COVENANT OF SEISIN AS RUNNING WITH THE LAND.

A covenant of seisin of an indefeasible estate in fee simple, which is broken when made, runs with the land, so that a subsequent grantee can sue the original covenantor for damages for a breach.

8. COVENANTS (§ 125) — ACTION FOR BREACH — MEASURE OF DAMAGES.

For breach of covenants of seisin and warranty in case of total failure of title, the measure of damages is the purchase money paid with interest.

9. COVENANTS (§ 125) — ACTION FOR BREACH — NOMINAL DAMAGES.

In an action for breach of covenants of seisin and warranty, plaintiff was properly awarded nominal damages only, in absence of proof of the amount of the consideration paid in a case where the deed recited a consideration of $1 and other lands.

In Banc. Appeal from Circuit Court, St. Clair County; C. A. Denton, Judge.

Action by A. M. Coleman against J. H. Lucksinger. Judgment for plaintiff for $1, and he appeals. Affirmed.

Nearing & Townsend, for appellant. Omar Robinson, for respondent.

GANTT, J.

This action was commenced in the circuit court of St. Clair county, Mo., to recover $10,000 for breach of covenants of seisin and warranty in a deed executed by the defendant, Lucksinger, a resident of St. Clair county, Mo., to Charles C. Henry of Jackson county, Mo., of date June 20, 1899, conveying certain lands described as surveys 13 and 25 in block 230, Foley county, in the state of Texas, and wherein the consideration was expressed to be "one dollar and other lands." Subsequently Henry conveyed the same lands to the plaintiff by deed dated April 19, 1902, wherein the warranty was special only, and the consideration "five dollars and exchange of property." This action was begun September 17, 1904, in St. Clair county, Mo., for the breach of the said covenants of the defendant to Henry; the plaintiff alleging that she was damaged in the sum of $10,000, because the title to said lands had entirely failed, and the measure of her damages was the market value thereof, which she alleged to be $10,000. The answer of the defendant was a general denial. A jury was waived in the circuit court, and the cause was submitted to the court upon the pleadings and the evidence, and judgment was rendered for the plaintiff for the sum of $1. From that judgment she has appealed in due form.

The facts of the case are practically undisputed. As already stated, the defendant, on June 20, 1899, being then and at the time of the commencement of this suit a resident of St. Clair county, Mo., executed and delivered to Charles C. Henry of Jackson county, Mo., a deed with covenants of seisin and warranty to the said lands in Texas, and thereafter, on the 19th of April, 1902, Henry and wife by a deed of special warranty conveyed the same lands to plaintiff. Plaintiff introduced evidence tending to show that defendant had no title whatever to the land, which his said deed purported to convey to Henry, and it was admitted that neither Henry nor the plaintiff was ever in the actual possession of said land. The evidence further tended to show the value of the Texas land as follows: W. H. Ragin testified that if the land was dry land, it was worth $1 per acre, if it had living water on it, it was worth $4 or $5 per acre; but the witness could not state of his own knowledge whether the land had living water on it or not. Charles C. Henry testified that the defendant told him that there was a creek, which went through both sections, and there was a little timber along the creek, but it was mostly prairie; that it was pasture land, and the consideration was that it was worth $5 per acre; that defendant placed a value of $6,000 upon the Texas land, and the witness Henry placed the same value upon the property which he traded defendant for the said land, but he supposed that this was more than the property was worth. Witness never saw the land in Texas. The plaintiff did not attempt to show the consideration she paid Henry for deeding said property to her. She did not show that she had paid the $5 recited in the deed, nor that she had conveyed any other property to him as mentioned in the deed. The cause was tried upon her part on the theory that it was of no consequence what damages, if any, she naturally sustained, but that her measure of recovery should be the value of the lands described in defendant's deed to Henry, without regard to the consideration passing from her to Henry. There was no evidence as to the value of the property which Henry conveyed to the defendant in consideration of the conveyance to him of the property in Texas.

1. Logically the contention of the defendant that this action was local in its character, and could neither be brought nor maintained in this state, because the covenants of warranty and seisin related to lands in Texas, presents the first question for decision on this record. The proposition, in order to be of any value to the defendant in this case, must deny the jurisdiction of the circuit court of St. Clair county over the subject-matter of this action, because, if it were a mere question of jurisdiction over the person, the appearance of the defendant and his answer to the merits effectually waived any question of the jurisdiction over his person. At common law no local action could be maintained out of the jurisdiction in which it arose, even though the result in many instances would be to deprive a party of all remedy; and, where the action was brought by a remote grantee of the land, on a covenant which ran with the land, the covenantee's right of action was based upon privity of estate, and not on privity of contract, and the action was deemed local, and must have been brought in the place or county in which the land lies. 8 Am. & Eng. Ency. of Law, 222; Birney v. Haim, 2 Litt. (Ky.) 262; White v. Sanborn, 6 N. H. 224; Lienow v. Ellis, 6 Mass. 331; Clark v. Scudder, 6 Gray (Mass.) 122. We concede that this is the settled common-law rule, and the courts of the different states in our Union which have maintained this doctrine have done so under stress of the common law; but, in our opinion, our statute providing for the place of bringing of suits (sections 562, 564, c. 8, art. 3, Rev. St. 1899; Ann. St. 1906, pp. 591, 593) has changed this rule, and this action on a covenant of seisin or warranty is not one required to be brought in the county in which the land lies.

In Oliver v. Loye, 59 Miss. 320, this question arose, and Judge Campbell, speaking for the Supreme Court of that state, while recognizing the common-law rule as to local and transitory actions, said: "Originally all actions were local, and great regard was had to place, so that every material allegation of a pleading had to be accompanied by the averment of a place, in order that a jury might be summoned from the...