Dickson v. Desire's Adm'r

• Decision Date: 31 March 1856
• Citation: 23 Mo. 151
• Parties: DICKSON & GANTT, Plaintiffs in Error, v. DESIRE'S ADMINISTRATOR, Defendant in Error.
• Court: Missouri Supreme Court

23 Mo. 151

DICKSON & GANTT, Plaintiffs in Error,

v.DESIRE'S ADMINISTRATOR, Defendant in Error.

Supreme Court of Missouri.

March Term, 1856.

1. The statutory covenant of indefeasible seizin, implied in the words “grant, bargain and sell,” is a covenant running with the land; and, where possession accompanies the conveyance, it will enure to the benefit of the subsequent transferee in possession at the time of the substantial breach by the assertion of a paramount title; and that, too, although an intermediate conveyance may have been a sheriff's deed.

2. The measure of damages in a suit between the original parties on a covenant of seizin is the consideration given and received.

3. The right of recovery of a subsequent grantee against the first grantor must, it seems, be limited to his actualloss; it can not, however, exceed the liability of the first vendor to his immediate grantee.

4. In order to establish a right to recover for a breach of the covenant of seizin, it is not necessary to show an eviction; it is sufficient if some damage resulting from an outstanding paramount title be shown. If damages are sought to be recovered for the extinguishment of this title, it devolves upon the plaintiff to show the reasonableness of the price paid; and this is to be determined by the value of the land at the time of the extinguishment of the paramount title, and not by its value at the date of the previous transfers.

Error to St. Louis Circuit Court.

Plaintiffs, C. K. Dickson and T. T. Gantt, filed a demand in the Probate Court of St. Louis county, against the estate of Jacques Desiré. The demand, which was for the sum of $5712.50, was founded upon an alleged breach of a statutory covenant of indefeasible seizin, implied from the use of the words “grant, bargain and sell” in a deed of conveyance from the said Desiré to Letitia Duncan, from whom plaintiffs claimed by intermediate conveyances, as set forth in the agreed case stated below. This deed purported to convey the lot of land which was the subject matter of the controversy in the case of Chauvin v. Wagner & Dorsett, reported 18 Mo. Rep. 531, to which report reference must be had for a perfect understanding of this case. The demand of plaintiffs was allowed by the Probate Court, and the cause was appealed to the Circuit Court. The cause was submitted to the Circuit Court upon the following agreed statement of facts:

“The parties agree upon the following facts in this cause, and thereupon pray the judgment of the St. Louis Circuit Court. Either party may appeal or prosecute a writ of error to the Supreme Court.

The facts are as follows: On the 8th August, 1835, Jacques Desiré made his deed in writing, recorded in book V, p. 31, and thereby, for the consideration of $6,500, to him paid by Letitia Duncan, conveyed to her in fee a lot of ground in block 131, on Market street, St. Louis, having a front of 67 6-12 feet on Market street, which bounds it on the south, by a depth of 104 feet on Seventh street, which bounds it on the west; and in and by said deed said Desiré covenanted with said Duncan, her heirs and assigns, that he was seized of an indefeasible estate in fee simple in said real estate, as will appear by reference to said deed, which forms part of this case. Said Letitia Duncan took immediate possession of said real estate, claiming the same under said deed, and continued seized and possessed thereof until the 16th day of December, 1846, when all the right, title, claim and estate of the said Letitia Duncan therein was sold to Walter H. Dorsett by the sheriff of St. Louis county, by virtue of a regular execution issued on a valid judgment against said Duncan. The said Dorsett thereupon immediately took possession of said real estate, and continued seized and possessed thereof until May 12th, 1855, when the heirs of Emily Chauvin, claiming the same by title alleged to be paramount to that of Desiré, by the judgment of the St. Louis Court of Common Pleas, recovered against the said Dorsett the possession of said real estate and damages for withholding the possession thereof, and costs. Said judgment was given in a suit begun on 24th August, 1850; and notice of the institution thereof was given to the administrator of Desiré by said Dorsett in the month of February, 1851, before the said cause was tried. Said cause was taken to the Supreme Court of Missouri, and decided, as will appear by reference to 18 Mo. Rep. 531. The record of that case may be referred to by either side as part of this case.

“Prior to the said judgment of the St. Louis Court of Common Pleas in May, 1855, said Dorsett had conveyed to the said plaintiffs, Dickson and Gantt, by quit claim deed, all his interest in said land, and also his right of action, if any, to him accruing, against the estate of said Desiré; and they, the said Dickson and Gantt, considering the decision in the case of Chauvin v. Dorsett (18 Mo. 531), to be conclusive of the rights of the litigants, made a compromise with the heirs of Emily Chauvin prior to the 12th day of May, 1855, by means of which the said Dickson and Gantt paid to said heirs the sum of $500; and a petition was filed setting forth that the said Dickson and Gantt were entitled to the one moiety of said tract of land; and the heirs of Emily Chauvin to the other moiety; and an order was made by the St. Louis Land Court for the sale of said real estate, which was done; and at the sale, Dickson and Gantt became the purchasers, and received the sheriff's deed therefor.

There was no express assignment by Mrs. Duncan of the covenant of indefeasance seizin made by Desiré to Duncan as aforesaid. Plaintiffs claim that it passed to Dorsett, and from Dorsett to them, by the conveyances and transfers above recited, as an incident of the estate of Letitia Duncan; which is denied by the administrator of Desiré. Plaintiffs also say that the seizin of Dorsett, vendee of Duncan, was defeated by the paramount title of the heirs of Chauvin, and the recovery aforesaid. The administrator denies that the title of the heirs of Chauvin was paramount; and by this objection denies that the decision in the case of Chauvin v. Dorsett is law, or is conclusive on Desiré, or that said judgment, so rendered on May 12th, 1855, is conclusive upon Desiré.

Plaintiffs, now respondents, say that they have lost, or that Dorsett, under whom they claim, has lost, by reason of the failure of said Desiré's title, and the breach of said covenant of seizin, the one half of said real estate, and $500 in money; and they claim to recover against the estate of Jacques Desiré damages amounting to one half of the purchase money received by Desiré, and interest thereon from the 24th August, 1845; together with the sum of $500 and interest thereon, from the first day of April, 1855.”

Said deed referred to in the above agreed case, so far as it is necessary to set forth the same, is as follows:

“This deed, made this eighth day of August, in the year of our Lord one thousand eight hundred and thirty-five, between Jacques Desiré and Pelagie his wife, grantors of the first part, and Letitia Duncan, grantee of the second part, all of the city and county of St. Louis, and state of Missouri, witnesseth, that the said grantors for and in consideration of the sum of six thousand five hundred dollars, to them in hand paid by the said grantee at and before the sealing and delivery thereof, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Letitia Duncan, her heirs and assigns, a certain lot, piece, or parcel of ground [describing the same],” &c.

Upon this agreed case, the Circuit Court gave judgment for the defendant. Exceptions were duly taken. The case is brought to this court by writ of error.

T. T. Gantt, for plaintiffs in error.

I. Dickson and Gantt have all the right to sue on the covenant of Desiré, which accrued to Walter H. Dorsett.

II. Walter H. Dorsett became entitled to the benefit of this covenant, upon his purchase of all of the interest of the covenantee in the land at sheriff's sale.

III. That the decision of the Supreme Court in this cause, (Chauvin v. Wagner & Dorsett, 18 Mo. 531,) in a proceeding of which the administrator of Desiré had notice, and the judgment of the St. Louis Court of Common Pleas upon that decision, are conclusive as to the breach of the covenant of indefeasible seizin; in other words,

IV. That Desiré's administrator cannot aver against that judgment, that Desiré was seized according to the said covenant, or that the said covenant has not been broken.

V. That, although the seizin of Dorsett was altogether defeated by said judgment, yet the damages occasioned by the breach must be restricted to what was actually lost; which was the half of the land, and the sum of five hundred dollars; and the measure of damages for the loss of one half of the land, is the one half of the purchase money paid by Mrs. Duncan, and the interest thereon, from a period of five years before the beginning of the suit in which the land was lost; i. e., 24th August, 1845. For the sum of $3,250 and interest since 24th August, 1845, and for $500 with interest, from 1st April, 1855, therefore, plaintiff in error asks judgment.

The covenant of indefeasible seizin more nearly resembles a covenant for quiet enjoyment, or a covenant against any encumbrance, whereby an estate may be defeated, than a mere covenant of present seizin, with which it has been sometimes confounded. (Stannard v. Eldridge, 16 Johns. 254; 7 Johns. 358.) Up to the defeating of the seizin only nominal damages could have been recovered on such a covenant. The covenant is one made in respect of a tract of land; all connection between Mrs. Duncan and the land was severed in 1846; and, in fact, she was in nowise damnified by the breach of the covenant. Its breach was not suspected when the sheriff sold her interest in the land to Dorsett. Does the...