Crosby v. Evans
| Decision Date | 02 March 1920 |
| Citation | 219 S.W. 948,281 Mo. 202 |
| Parties | WILLIAM L. CROSBY, Appellant, v. MARY F. EVANS and SUSIE E. EVANS |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Arch A. Johnson, Judge.
Cause remanded (with directions).
U. G Johnson and Warren L. White for appellant.
(1) The answer states no defense. It is true that convenants of seizing and of warranty run with the land in this State, and inure to the subsequent grantee upon whom loss falls. Coleman v. Lucksinger, 224 Mo. 15; Allen v Kennedy, 91 Mo. 331; Dixon v. Desire, 23 Mo 151. But this rule is not applied to a mortgage given for the purchase money. (a) Where a conveyance is made with such covenants and a mortgage with like covenants is given for the purchase money, the mortgagor is not estopped by his covenants to sue on the vendor's covenants, nor does the vendor absorb all right by virtue of the mortgage back to him. And this is true in those states where the mortgagee taxes the title instead of mere lien. Connor v Eddy, 25 Mo. 72; Randall v. Lower, 98 Ind. 258; 12 Cent. Digest, 122, Title Covenant, sec. 75; Hubbard v. Norton, 10 Conn. 422; Hardy v. Nelson, 27 Maine, 525; Rawle on Covenants, secs. 217, 219; Resser v. Carney, 54 N.W. 89; Haynes v. Stevens, 11 N.H. 34. (b) A foreclosure of the purchase money mortgage, by the vendor, where he purchases at the foreclosure sale, does not extinguish the right of action of the mortgagor for breach of the covenants in the deed to him. Resser v. Carney, 54 N.W. 91; Haynes v. Stevens, 11 N.H. 35; Bennett v. Vance, 3 John. (N. Y.) 363. (c) In those states where a mortgage vests the legal title in the mortgagee, a mortgage for the purchase money does not extinguish the mortgagor's right to sue on the covenants in the deed by which he acquires title. Hardy v. Nelson, 27 Me. 528; Rawle on Covenants, sec. 219, and note 1, p. 328; Bennett v. Vance, 3 Johns. 363. (2) The after acquisition of the paramount title which defendants plead is no defense. Plaintiff having failed to record his deed, defendants, after purchasing the paramount title, conveyed it to a stranger. Defendants are estopped by that act to deny liability on their covenants. Besides, defendants had foreclosed their purchase money mortgage March 31, 1910, before they bought the outstanding title at the sheriff's sale May 11 of that year, so that defense is refuted by the facts. 11 Cyc. 1122, note 76; Clark v. O'Neal, 13 La. Ann. 381; Williamson v. Williamson, 71 Me. 442; Curtis v. Deering, 12 Me. 499. (3) That the foreclosure was pursuant to an agreement to perfect the title, not a hostile one, and left plaintiff's right to redeem unimpaired, was sufficiently shown to make out a case for the jury.
G. W. Goad and O. T. Hamlin for respondents.
(1) The second count of defendant's answer states a complete defense to plaintiff's petition. (a) In Missouri covenants of warranty run with the land, and the right to sue upon a broken covenant of warranty passes to the grantee or assignee, who must sue in his own name. The grantor or assignee cannot sue. Van Dorn v. Rolfe, 20 Mo. 455; Dickson v. Desire, 23 Mo. 166; Chambers v. Smith, 23 Mo. 174; Vancourt v. More, 26 Mo. 98; Jones v. Whitsett, 79 Mo. 191; Hunt v. Marsh, 80 Mo. 398; Allen v. Kennedy, 91 Mo. 324; Johnson v. Johnson, 170 Mo. 48; Coleman v. Lucksinger, 224 Mo. 14; Langenberg v. Heer Dry Goods Co., 74 Mo.App. 20. (b) A mortgage or deed of trust on real estate is now a mere surety for the debt -- is a chattel interest passing at the death of the mortgagee to the personal representatives. Therefore, a mortgagor, prior to foreclosure, continues to be the owner of the estate so long as he is permitted to remain in possession. Woods v. Hildebrand, 46 Mo. 286; Pierce v. Gabbert's Adm., 70 Mo.App. 205; Kennett v. Plummer, 28 Mo. 142; Pierce v. Iron Co., 49 Mo. 124; Hardwick v. Jones, 65 Mo. 60; In re Life Assn. of America, 96 Mo. 636; Fischer v. Johnson, 51 Mo.App. 162. The last-mentioned point and authorities fully explain the reason for the ruling in Conner v. Eddy, 25 Mo. 72, cited and relied on by plaintiff. (c) Plaintiff cannot claim as an excuse for defaulting in the payment of the notes secured by the deed of trust to defendants that there was a defect in the title conveyed by the warranty deed of defendants. Cartwright v. Culver, 74 Mo. 179; Hunt v. Marsh, 80 Mo. 398; 27 Cyc. 1554, 1555. (d) Defendants conveyed to plaintiff with covenants of warranty, and plaintiff conveyed back to defendants with like covenants of warranty. These covenants cancel each other. Dervin v. Hendershott, 32 Iowa 192; Stephens v. Winship, 11 Am. Dec. 182; Hatch v. Kimball, 14 Me. 9; Goodall v. Bennett, 22 Wis. 565; Green v. Edwards, 15 Tex.App. 382; Eveleth v. Crouch, 15 Mass. 307; Carroll v. Carroll, 113 Iowa 419; Willis v. McGough & Co., 56 Ga. 198; Field v. Willingham, 49 Ga. 345; Brown v. Metz, 33 Ill. 339; Silvermann v. Silvermann, 104 Ill. 137; 11 Cyc. 1094. (2) If it be determined that plaintiff still had a right to sue notwithstanding the foreclosure of the deed of trust which divested him of all title, or that defendants acquired the land at said foreclosure sale in trust for the use of plaintiff, then the after acquired title of defendants at the sheriff's sale June 11, 1910, by virtue of their warranty deed to plaintiff June 10, 1907, inured to and vested in plaintiff and no damages for breach of covenant can rise. Boyd v. Haseltine, 110 Mo. 206; Cocrill v. Bane, 94 Mo. 444; Johnson v. Johnson, 170 Mo. 34; Cartwright v. Culver, 74 Mo. 179; Hunt v. Marsh, 80 Mo. 398; Crumb v. Wright, 97 Mo. 19; R. S. 1909, sec. 2871; Reese v. Smith, 12 Mo. 344; Collier v. Gamble, 10 Mo. 466; Bank of Utica v. Merservan, 49 Am. Dec. 197; 11 Cyc. 1137. (3) Defendants' motion to strike out plaintiff's reply should have been sustained. (a) Plaintiff's petition is an action at law for breach of covenant. The reply is an action in equity to declare a trust based on a written agreement. These two causes of action should have been alleged in the petition, not one in the petition and the other in the reply. Mathieson v. Railroad, 219 Mo. 552; Moss v. Fitch, 212 Mo. 502; Hill v. Mining Co., 119 Mo. 30; Jackson v. Powell, 110 Mo.App. 252; Stepp v. Livingston, 72 Mo.App. 179; Crawford v. Spencer, 36 Mo.App. 82; Lanity v. King, 93 Mo. 519; Rhodes v. Lumber Co., 105 Mo. 313; McMahill v. Jenkins, 69 Mo.App. 281; Milliken v. Commission Co., 202 Mo. 654; Mahoney v. Reed, 40 Mo.App. 99; Cement Co. v Ullman, 159 Mo.App. 254; Roving Fork Co. v. Produce Co., 193 Mo.App. 658; Mahoney v. Reed, 40 Mo.App. 109. If plaintiff desired to shift his ground he should have done so by amending his petition. Randolph v. Frick, 57 Mo.App. 405. Said cause of action should be separately stated, separately tried, one by the chancellor and one by a jury. McHoney v. Ins. Co., 44 Mo.App. 426; Zeidman v. Molasky, 118 Mo.App. 123; Young v. Coleman, 43 Mo. 179; Jones v. Moore, 42 Mo. 413. (b). A reply cannot be used in aid of the petition to introduce for the first time a new cause of action or an additional cause of action, nor to engraft on the petition a material allegation omitted therefrom. Rhodes v. Lumber Co., 105 Mo.App. 313; McMahill v. Jenkins, 69 Mo.App. 281; Hill v. Mining Co., 119 Mo. 30. (4) Defendants' demurrer to the evidence at the close of plaintiff's case should have been given, as the evidence failed to establish the terms and conditions of the alleged last written agreement set up in plaintiff's reply. (a) The conversation of Geo. W. Evans with the witnesses, U. G. Johnson and A. W. Lincoln, had long prior to the date of said alleged written agreement, is no evidence of the subsequent written agreement. Gorham v. Auerswold, 53 Mo. App 131; Conrad v. Fischer, 37 Mo.App. 376; Johnson Co. v. Wood, 84 Mo. 489; Bignal v. Pierce, 59 Mo.App. 673; Taylor v. iggs, 26 U.S. 591, 7 L.Ed. 275; Richard v. Robbins, 124 Mass. 105. (b) If an agreement can be inferred from the facts related by the witnesses Johnson and Lincoln, and a subsequent written agreement inferred from that agreement then we have an inference based on an inference -- a presumption on a presumption which is prohibited by law. Wulfing v. Cork Co., 250 Mo. 723. (c) The witness Goad testified only as to the fact that a written agreement was entered into regarding the sheriff's sale. There was no evidence that any written agreement (or any other agreement) was ever made regarding the foreclosure sale of the deed of trust, althought such agreement must be shown to have not only been made, but its contents proven by full, clear, strong and convincing evidence. Bennett v. Walker, 23 Ill. 97; Peters v. Worth, 164 Mo. 439; Cunningham v. Railroad, 61 Mo. 36; 17 Cyc. 778; 25 Cyc. 1627; 3 Wigmore on Evidence, sec. 2105, p. 2845. (5) The trial court erred in submitting the cause of action alleged in plaintiff's reply to a jury. The same should have been tried by the chancellor. McHoney v. Ins. Co., 44 Mo.App. 426; Jones v. Moore, 42 Mo. 413; Young v. Coleman, 43 Mo. 179. (6) The trial court erred in requiring the sheriff to summons five extra jurors. The court's duty to make out such list of extra jurors cannot be legally delegated to the sheriff. Laws 1911, p. 307, sec. 8. (7) Plaintiff was entitled to interest only from date of eviction. The instructions and verdict gave interest from date of payments. Pence v. Gabberts, 70 Mo.App. 209.
The defendants Mary F. and Susie E. Evans, conveyed by a warranty deed, dated June 25, 1895, recorded April 23, 1903, to George W. Evans, their father, Lot 37 in Block 3 of Hobart's Addition to the City of North Springfield (now Springfield) Missouri. On June 10, 1907, the defendants conveyed the same lot to the plaintiff, William L. Crosby, and his...
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