Coleman v. Lucksinger

• Decision Date: 29 November 1909
• Citation: 123 S.W. 441,224 Mo. 1
• Parties: A. M. COLEMAN, Appellant, v. J. A. LUCKSINGER
• Court: Missouri Supreme Court

123 S.W. 441

224 Mo. 1

A. M. COLEMAN, Appellant, v. J. A. LUCKSINGER

Supreme Court of Missouri

November 29, 1909

Appeal from St. Clair Circuit Court. -- Hon. C. A. Denton, Judge.

Affirmed.

Nearing & Townsend for appellant.

(1) Henry, at any time after the conveyance to him, could have brought suit upon the covenant therein and the measure of damages could then have been "the value of the land as fixed by the parties themselves in the price given and received." Dickson v. Desire, 23 Mo. 166. In the case at bar there was an exchange of property and the parties placed the value of each piece of property at $ 6,000, and this is a reasonable value as shown by the defendant. The evidence shows that he said he was familiar with the land, that it was fenced and watered, a creek running through both sections, and that it was worth $ 5.00 per acre -- 1280 acres -- or $ 6,400. The covenants having been broken at the time they were made the right of Henry then became a chose in action, assignable by Henry in the same manner and with the same rights as any other chose in action, and the conveyance of Henry to plaintiff was an assignment of such chose in action. Allen v Kennedy, 91 Mo. 324; Johnson v. Johnson, 170 Mo. 48; Winningham v. Pannock, 36 Mo.App. 688; Hendrix v. Dickson, 69 Mo.App. 206; Laugenberg v. Dry Goods Co., 74 Mo.App. 20. (2) As between the original parties to the conveyance an action for breach of warranty being founded on contract is transitory and need not be brought in the place or county where the land is situated but may be brought in any court of competent jurisdiction. 8 Am. and Eng. Ency. Law (2 Ed.), 222. Being founded upon contract, under the common law, the right of action could not be assigned and a subsequent grantee had no remedy. To prevent such gross miscarriage of justice the theory of privity of estate which carried the right of action to a subsequent grantee was devised by the courts. This theory was sufficient for the purpose, providing there was some estate to which it could attach, but it is difficult to perceive a privity of estate, which runs with and attaches to the land when there is no estate. In such cases the theory fails, and the subsequent grantee under the old rule was left without a remedy. In order to prevent any such wrong this court has adopted a very simple, logical and efficient rule -- that as between the original convenantor and covenantee the covenants were based upon a contract. A proceeding for breach of which could, and should be brought, as required by the statute, in the county where the defendant resides or could be found. That the covenant was broken when made and when covenantor had neither possession nor any title to the land, did not run with the land. That this right of action could be assigned is settled in case of Lawless v. Collier's Ex., 19 Mo. 483; Mathney v. Stewart, 108 Mo. 76. And that the conveyance by the covenantee to a subsequent grantee is an assignment of such right of action. Mathney v Stewart, 108 Mo. 76; Allen v. Kennedy, 91 Mo. 324; Johnson v. Johnson, 170 Mo. 48; Winningham v. Pennock, 36 Mo.App. 688; Hendrix v. Dickson, 69 Mo.App. 206; Langenberges v. Dry Goods Co., 74 Mo.App. 20.

Omar E. Robinson for respondent.

(1) Respondent contends that this suit is local in its character and could neither be brought nor maintained in this State. The rule applicable being declared in 8 Amer. & Eng. Ency. Law, page 222; Birney v. Haim, 2 Litt. (Ky.) 262; Clark v. Scudder, 6 Gray (Mass.) 122; Doulson v. Matthews, 4 T. R. 503 (Overruling Mostyn v. Eabrigas, 1 Cowp. 180); Shelling v. Farmer, 1 Stra. 646. (2) By the law of what state is this controversy to be determined? The law of Texas not having been pleaded or proven, the court cannot take judicial notice of it. The law of a foreign state must be pleaded or proven as a matter of fact or the court will not take notice of it. Charlotte (of color) v. Choteau, 25 Mo. 465; Hartman v. Railroad, 39 Mo.App. 88; Roll v. St. L. & Colo. S. & M. Co., 52 Mo.App. 60. When the statutes and decision of another state are relied upon to determine the rights of property they should be introduced in evidence at the trial. McClain v. Abshire, 63 Mo.App. 333; Clark v. Barnes, 58 Mo.App. 667. (3) Does a covenant of seizin of an indefeasible estate in fee simple which is broken when made run with the land so that a remote grantee can maintain a suit for damages against the original covenantor? If, as contended by appellant, all the covenants were broken when made, and neither title nor possession passed from respondent to Henry nor from Henry to appellant, and there being no privity of contract between the parties to this suit, respondent contends that appellant cannot maintain this action. "The covenant of seizin is a personal covenant in the present tense and if broken at all is broken the moment of its creation, and is immediately converted into a mere chose in action, which is incapable of running with the land, and which can be taken advantage of only by the covenantee or by his personal representative, and neither passes to an heir, a devisee nor a subsequent purchaser. Rawle on Covenants, 336; Davidson v. Cox, 10 Neb. 150; Blondeau v. Sheridan, 81 Mo. 545; Paul v. Bay, 51 Mo. 288. Covenants in praesenti being broken as soon as made, cannot for obvious reasons, run with the land to subsequent owners, so as to entitle them to sue for breach thereof. 3 Washb., Real Prop., 394; Chambers v. Smith, 23 Mo. 179. Covenants only run with the land until broken; they then become choses in action. Shelby v. Hearne, 6 Yerg. 512; St. Savior v. Smith, Burr. 1271; Grescott v. Green, 1 Salk. 199; Tillotson v. Boyd, 4 Sandf. 516; Cuthbertson v. Irving, 4 Hurl & Norman, 742. (4) Respondent contends that under no circumstances can the appellant recover, if at all, an amount in excess of the purchase money paid by her with interest thereon, attorneys' fees and costs, and on the trial below no attempt was made to show what those expenditures were. 8 Am. & Eng. Ency. Law, p. 190; 2 Cyc. 1164; Matheny v. Stewart, 108 Mo. 73; Phipps v. Terpley, 31 Miss. 433; Brooks v. Black, 8 So. (Miss.) 332; White v. Presley, 54 Miss. 513; Hazlett v. Woodruff, 150 Mo. 540; St. Louis v. Bissell, 46 Mo. 160; Hall v. Bray, 51 Mo. 292; Kirkpatrick v. Downing, 58 Mo. 38; Fox v. Hall, 74 Mo. 317; Ward v. Ashbrook, 78 Mo. 517; Jones v. Whitsett, 79 Mo. 191; Allen v. Kennedy, 91 Mo. 329; Wyatt v. Dunn, 93 Mo. 463; Leet v. Gratz, 92 Mo.App. 432; Jones v. Hazeltine, 124 Mo.App. 674; Quick v. Walker, 125 Mo.App. 257; Fontaine v. Boatmen's Savings Institution, 57 Mo. 552; Wood v. Broadley, 76 Mo. 33.

GANTT, J. Valliant, C.J., Fox and Lamm, JJ., concur; Burgess and Woodson, JJ., concur in separate opinion; Graves, J., not sitting. WOODSON, J., dissenting. Burgess, J., concurs with Woodson.

OPINION

In Banc

GANTT J.

This action was commenced in the circuit court of St. Clair county, Missouri, to recover ten thousand dollars for breach of covenants of seizin and warranty in a deed executed by the defendant Lucksinger, a resident of St. Clair county, Missouri, to Charles C. Henry of Jackson county, Missouri, 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, Missouri, for the breach of the said covenants of the defendant to Henry. The plaintiff alleging that she was damaged in the sum of ten thousand dollars, 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 ten thousand dollars.

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 one dollar. 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, Missouri, executed and delivered to Charles C. Henry, of Jackson county, Missouri, a deed with covenants of seizin 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 one dollar per acre; if it had living water on it, it was worth four or five dollars 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 five dollars per acre; that defendant placed a value of six thousand dollars 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...