Diggs v. Henson

• Decision Date: 03 February 1914
• Parties: DIGGS et al. v. HENSON.
• Court: Missouri Court of Appeals

163 S.W. 565

181 Mo. A. 34

DIGGS et al. v. HENSON.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

1. COVENANTS (§ 80)—TRANSFER — PERSONS ENTITLED TO ENFORCE.

Where land conveyed by statutory warranty, carrying the usual covenants, was quitclaimed to plaintiffs, the quitclaim carried with it the liability on the original grantor's covenants, and plaintiffs might recover on such covenants; the quitclaim operating as an assignment of the right of action on the covenants.

2. COVENANTS (§ 130)—BREACH—DAMAGES.

Where covenants of warranty made in the conveyance of land are broken by the assertion of a title paramount, the covenantees are entitled to recover as damages the amount paid out by them, plus interest and costs, subject to the limitation that remote grantees can only recover up to the amount received by the grantor sought to be held.

3. EVIDENCE (§ 383)—DEEDS—CONSIDERATION —RECITALS—EFFECT.

A recital in a quitclaim deed of the payment of a small consideration is not evidence of the payment of any consideration, in an action by the quitclaim grantees on covenants in a deed to their grantor.

4. APPEAL AND ERROR (§ 1031)—REVIEW — PRESUMPTIONS.

In an action tried to the court, where it admitted a deposition incompetent in part, it will be presumed that in deciding the case the court disregarded the incompetent evidence.

5. APPEAL AND ERROR (§ 1051)—REVIEW — HARMLESS ERROR.

The erroneous admission of incompetent evidence of a fact otherwise established is harmless.

6. WITNESSES (§ 159)—COMPETENCY—TRANSACTIONS WITH DECEDENT.

While Rev. St. 1909, § 6354, declares that, when one of the original parties to a contract or cause of action in issue is dead, the other party shall not be admitted to testify as to the transaction, a purchaser of land, who transferred the property to plaintiffs by a quitclaim deed, may, in an action on the covenants of warranty made by the first grantor, who has since died, testify as to the consideration paid by plaintiffs, and plaintiffs may also testify that they furnished the consideration for the original purchase, and that in pursuance of a previous contract the land was conveyed to them.

7. APPEAL AND ERROR (§ 1008)—REVIEW OF QUESTIONS OF FACT—WEIGHT OF EVIDENCE.

In an action tried to the court, where abandoned pleadings were introduced as admissions, the weight of such admissions is for the trial court, and not for the appellate tribunal.

Appeal from Circuit Court, Ste. Genevieve County; Peter H. Huck, Judge.

Action by T. H. Diggs and another against Lelia Henson, administratrix. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. L. Fort, of Dexter, for appellant. Brown & Gallivan, of New Madrid, and Benj. H. Marbury, of Farmington, for respondents.

REYNOLDS, P. J.

This is an action for damages for breach of the covenants of warranty of title, seizin, etc. By their deed, of date December, 1903, one Henson, joined by his wife, conveyed to one A. T. Shead certain lands in Stoddard county, Missouri, on the named consideration of $1,000. The deed was the statutory general warranty deed carrying the usual covenants. Afterwards, on January 2nd, 1904, Shead and wife conveyed the same land to Diggs and Garanflo, respondents here, plaintiffs below, the deed, an ordinary quitclaim, purporting to convey the promises, to have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging, unto Diggs and Garanflo, their heirs, etc., forever. The consideration named in this deed is one dollar, receipt of which is acknowledged. The second amended petition upon which the case was tried averring the above, avers that at the date of the execution and delivery of these deeds, Henson was not seized of an indefeasible estate in fee simple in the premises but that, on the contrary, at the suit of one Keaton, a deed in the chain of title under which Henson claimed had been adjudged to have been forged and thereby title in Henson failed, title being adjudged in Keaton. Plaintiffs, respondents here, were parties defendant to that action. It is further averred that upon being served in that suit respondents had notified Henson of its commencement and pendency and required him to defend it but that he having failed and neglected to do so, respondents had been compelled, at their own expense, to defend it. All these averments are practically conceded. Henson having died thereafter and his wife having been appointed administratrix of his estate, defendants brought this action against her as administratrix of the estate of her husband alleging breach of the covenant of warranty, title, etc., claiming the benefit of the covenants in the deed from Henson to Shead and claiming $1,000 damages and interest at 6 per cent from January 2, 1904, for breach of the covenants and also claiming costs expended in the beforementioned suit. These latter averments are denied.

The answer was a general denial, with the further defense pleaded that Henson was not the immediate grantor of and to plaintiffs; that he had sold the premises to Shead and that Shead had conveyed them by quitclaim to plaintiffs for the expressed consideration of one dollar, and that neither Henson, the deceased, nor Shead, had any title whatever, either defeasible or indefeasible, or any possession whatever, either actual or constructive, of, in or to the premises described.

The trial was before the court, a jury having been waived, which resulted in a finding for plaintiffs in the sum of $1,000, with interest at the rate of 6 per cent per annum from the date of institution of this action and for costs. Judgment following, defendant, interposing a motion for new trial and excepting to that being overruled, has duly perfected her appeal to this court.

There are no formal assignments of error but counsel for appellant makes three points upon which he relies for reversal. Taking up and considering them in their order, the first point made is, that "the rule of damages for breach of warranty in a conveyance of land in case of a total failure of title, is limited in this state to the purchase money paid, with interest thereon and costs; that the recital in the deed from Henson to Shead of a consideration of $1,000 is not evidence of the sum paid by plaintiffs to Shead; that in the deed from Shead to plaintiffs, the recited consideration is one dollar and that so far as plaintiffs are concerned, they are third persons as to the recited consideration in the deed from Henson to Shead and the recital in the consideration clause of that deed is not evidence of the amount paid or value of the premises as to plaintiffs, that is, the recital of the payment of one thousand dollars in the consideration clause of the deed from Henson to Shead is no evidence of the amount plaintiffs paid or of the value of the premises, and the recital that the payment of one dollar in the deed from Shead to plaintiff is no evidence against defendant even of the payment of one dollar." Coleman v. Lucksinger, 224 Mo. 1, loc. cit. 17, 18, 123 S. W. 441, 26 L. R. A. (N. S.) 934, is cited for this. There Matheny v. Stewart, 108 Mo. 73, 17 S. W. 1014, and Hazelett v. Woodruff, 150 Mo. 534, loc. cit. 541, 51 S. W. 1048, are cited in support of the above rule of damages for a breach of warranties in the conveyance of land in case of total failure of title, namely damages have always been limited in this state to the purchase money paid with interest thereon and costs, that measure applying also to breach of covenant of seizin. This court had occasion to consider that same question in Staed v. Rossier, 157 Mo. App. 300, 137 S. W. 901, and following the rule above announced further held that the right of recovery of the assignee against the first grantor upon the original covenant "`must of course be limited to his actual loss, although it cannot exceed the liability of the first vendor to his immediate grantee,'" the subquote being from Dickson v. Desire's Adm'r, 23 Mo. 151, 66 Am. Dec. 661. In Coleman v. Lucksinger, supra, 224 Mo. loc. cit. 15, 123 S. W. 441, 26 L. R. A. (N. S.) 934, passing on the effect of a special warranty deed, which in legal effect was a mere quitclaim, as we understand, without the statutory words "grant, bargain and sell," and warranting only against any acts of the grantors, Allen v. Kennedy, 91 Mo. 324, 3 S. W. 142, is quoted approvingly as holding, that the covenant of seizin of an indefeasible estate in fee is more than a covenant in the present tense—"is rather a covenant of indemnity, * * * that it runs with the land to the extent that if the covenantee takes any estate, however defeasible, or if possession accompanies the deed, though no title pass, yet, in either event, this covenant runs with the land and inures to the subsequent grantee, upon whom the loss falls." Dickson v. Desire's Adm'r, supra, and other cases are cited in support of this. It is further held in the Allen Case that choses in action are assignable in our state, and that damages arising from the breach of the covenants in a deed may be assigned, and when assigned, "the assignee and he alone, can sue," and that by our statute "any person claiming title to real estate, may, though there be an adverse possession, convey his interest as if he were in the actual possession." It is true that both of the deeds before the court in Allen v. Kennedy, supra, were statutory general warranty deeds. But, as will be noted, the court, in Coleman v. Lucksinger, supra, applied the law announced in the Allen Case to one in which the deed to the plaintiff there was one of special warranty, with no covenants except as against the acts of the grantor in the latter deed.

Johnson v. Johnson, 170 Mo. 34, loc. cit. 49, 70 S. W. 241, 59 L. R. A. 748, is also cited in the Coleman Case as following the Allen Case. In the Johnson Case it is distinctly held (170 Mo. loc. cit. 49, 70 S. W. 245, 59 L. R. A. 748): "The quitclaim of his...