Collier v. Gamble ex rel. McCabe

• Decision Date: 31 March 1847
• Citation: 10 Mo. 467
• Parties: COLLIER v. GAMBLE, USE OF MCCABE, &c.
• Court: Missouri Supreme Court

10 Mo. 467

COLLIER

v.GAMBLE, USE OF MCCABE, &c.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

BATES, for Appellant.

HAMILTON, for Appellee.

NAPTON, J.

This was an action of covenant brought by Gamble, to the use of McCabe, trustee of Virginia Lawless. The declaration assigned a breach of the covenant of seizen created by the words “grant, bargain and sell,” in a deed from George Collier the defendant, to Hamilton R. Gamble, the plaintiff, made on the 8th November, 1834, and conveying a tract of land in St. Louis, containing about twenty-four acres. Defendant pleaded, 1st, non est factum; 2nd, that defendant was seized of an indefeasible estate in fee simple, &c., at the time, &c. 3rd, that the plaintiff had conveyed to one Mills, with covenant of general warranty; and that said Mills, and every one claiming under him, had ever since been in peaceable and undisturbed possession; and said plaintiff had never been compelled to pay any damages, by reason of any disturbance to said Mills, &c., or any defect of title, &c. To the two last pleas, plaintiff demurred, and the demurrer was sustained. Defendant then, by leave of court, filed an additional plea, to-wit: that at the time, &c., he was seized of an indefeasible estate in fee simple; and that he, at the same time, was so seized in virtue of a valid conveyance of the said lands from one McAllister and wife, who were, at the time of making the conveyance, the lawful owners and possessors of said land, &c. A demurrer to the additional plea was also sustained.

It may be stated here, that these two actions, originally brought on two deeds from Collier to Gamble, and after the pleadings in the two actions were made up, being precisely the same in each, they were, by order of the court, consolidated. The plaintiff gave in evidence two deeds from Collier and wife to Gamble, dated 29th September, 1831, and the 8th November, 1834, for some lands adjoining St. Louis. The consideration of the one was $800, and the other $1,838. The plaintiff also gave in evidence an account current between Collier and Gamble, showing the receipt of the purchase-money by the former. It was admitted that Gamble had expended $4,500 in improvements, after his purchase from Collier.

The defendant gave in evidence a deed from Gamble to Mills for this land, in consideration of $12,000, containing a covenant of general warranty by Gamble. It was admitted by the plaintiff, that ever since said purchase by Mills, he, and those claiming under him, had held undisputed possession of the land conveyed. Defendant then offered in evidence the following paper: “Know all men by these presents, that whereas George Collier and wife, by two deeds, one dated 29th September, 1831, and the other 8th November, 1834, conveyed to H. R. Gamble several portions of land, which, together, form one tract of forty acres, bounded, &c. and the said Collier, by said deeds, covenanted with the said Gamble for the title to said (land); and whereas, the said land is embraced in a tract of 350 arpents, claimed by the heirs of Major Amos Stoddard, deceased, which claim of the heirs of said Stoddard is adverse to the title conveyed by said Collier to said Gamble: and whereas, the heirs of said Stoddard have conveyed to Luke Edward Lawless one undivided fifth part of said tract of 350 arpents, and the said Lawless has conveyed said undivided fifth part of said tract of 350 arpents to Gamble, now therefore, in consideration of the premises, the said Gamble, does, by these presents, assign and transfer unto Edmund H. McCabe, in trust for Mrs. Virginia Lawless, all recourse which he is entitled to against the said Collier, upon the covenants, express or implied, in the said two deeds, if the title held under and derived from the said Major Amos Stoddard shall prove to be a better title to said land than that which was conveyed to said Gamble by said Collier. And the said Gamble, by these presents, gives to the said McCabe, trustee as aforesaid, full power and authority to use his name in any proceeding or suit which may be necessary to enforce the claim against the said Collier, if the said title under the said Stoddard shall prove to be the better title; and any recovery in said suit or proceeding shall be for the benefit of the said Virginia Lawless. In testimony whereof, the said Hamilton R. Gamble has hereto set his hand and seal this 16th March, 1842. H. R. Gamble. Seal.” At the foot of this writing was a statement by Collier consenting to be held responsible to McCabe on his covenant to Gamble, as he would have been to Gamble. The admission of this document, which was produced by a supœna duces tecum from L. E. Lawless, was objected to by the plaintiff, and it was excluded by the court.

The court instructed the jury that the measure of damages was the consideration money, with interest. The court was requested by the defendant to instruct the jury, that if the plaintiff had voluntarily placed himself in such situation that he could not convey back to the defendant the land conveyed to him by the deeds containing the covenants sued on, he could not recover the whole consideration money, with interest, &c. But the court refused to give this instruction. The plaintiff had a verdict and judgment for $4,628 32. A motion for a new trial was made and overruled, and the several opinions of the Court of Common Pleas excepted to.

1. The demurrer to the second plea was improperly sustained. The breach assigned in the declaration was, that the defendant was not seized of an indefeasible estate in fee simple, and the plea avers that he was so seized. If the breach be well assigned, the plea must be good. Whether the assignment of the breach be sufficient, will depend upon the character of the covenant, about which we shall speak presently. If the covenant be a mere covenant of seizen, the breach is well enough; but if the covenant be not only a covenant of seizen, but in effect a covenant against incumbrances, there must then be a specific allegation of an incumbrance or paramount title. 2 Kent's Com., 1st ed., 466.

2. The third plea presents the question whether our statutory covenant of seizen is merely a personal covenant, as it was understood to be at common law, or is to be construed as a covenant real, running with the land. The use of the word “assigns,” in the statute, is relied on as a proof that the Legislature, in this respect, designed to alter the common law. The act says, that the words “grant, bargain and sell” shall be construed to mean certain covenants therein specified on the part of the grantor, for himself and his heirs, to the grantee, his heirs and assigns. These covenants are, first, of seizen, &c. second, against incumbrances, suffered by the grantor; and, third, for further assurance. The two first, are, by the rules of the common law, personal covenants, and are broken, if broken at all, the moment they are made. From their very nature, they are incapable of future violation. As a consequence of this they did not run with the land, but the remedy upon them being complete, as soon as they were made, was confined to the grantee and his representatives. The third covenant mentioned in our statute (that for further assurance), though not strictly a covenant real, at common law, is a covenant running with the land, like those for general warranty and quiet enjoyment.

It will not escape the observation of any one who examines the mutations which this provision of our statute has undergone, since its...