Foote v. Clark

• Citation: 14 S.W. 981,102 Mo. 394
• Parties: Foote et al., Appellants, v. Clark et al., Appellants
• Decision Date: 22 December 1890
• Court: Missouri Supreme Court

14 S.W. 981

102 Mo. 394

Foote et al., Appellants, v. Clark et al., Appellants

Supreme Court of Missouri

December 22, 1890

Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.

Reversed and remanded.

H. S Kelly, for plaintiffs, appellants.

(1) The court erred in giving defendants one-eighth of the land in controversy. Plaintiffs were entitled to recover the whole tract. The deed of Mrs. Hunt to Abbott did not contain any warranty or covenants of warranty of the title in fee. The deed must be viewed from the four corners, and be construed as the parties intended that it should. Lively v Rice, 22 N.E. 888; Allen v. Holton, 20 Pick 458; Sweet v. Brown, 12 Metc. 175; Howard v. Chase, 104 Mass. 249. The meaning or intention must be the guide to the construction of the instrument. 2 Dev. on Deeds, sec. 850; Lindley v. Groff, 34 N.W. 26. (2) Statutory covenants ought to be strictly construed, and held to apply to the interest owned by the grantor and limited to it. Finley v. Steele, 23 Ill. 56; Douglas v. Lewis, 9 S. P. Ct. Rep. 634; Redding v. Lamb, 45 N.W. 997. (3) The deed of Mrs. Hunt to Abbott having been executed in North Carolina, it must be construed and its character and effect determined by the law of that state, which is presumed to be the common law, and by that law the deed in question is no more than a quitclaim. Scudder v. Bank, 1 Otto, 406, 414; 91 U.S. 406; Liver-pool v. Ins. Co., 9 S. P. Ct. Rep. 474; Jackson v. Green, 14 N.E. 89; Bethell v. Bethell, 92 Ind. 318; Craig v. Donovan, 63 Mo. 513; Bethell v. Bethell, 54 Ind. 428. (4) There is no element of estoppel in this case, as contended for by defendant. Justein v. Town of Lancaster, 20 Mo.App. 559; Rodgers v. Marsh, 73 Mo. 64; Bates v. Perry, 51 Mo. 449; Eitelgeorge v. Ins. Co., 69 Mo. 52. (5) Defendant had the life-estate of Mrs. Hunt, and had a right to improve the land, and plaintiff had no right to object or interfere. Bates v. Perry, 51 Mo. 449. (6) The law imputed notice to defendant of plaintiff's title. He was bound to take notice of what was on record. The deed of Mrs. Hunt showed on its face the condition of the title. Mason v. Black, 87 Mo. 329, and cases cited; Orrick v. Durham, 79 Mo. 174. Minors are not estopped (Burke v. Adams, 80 Mo. 504); nor are femes covert, except as to their separate estates. Rannells v. Gerner, 80 Mo. 474; Cottrell v. Spiess, 23 Mo.App. 98. (7) The court did not err in excluding evidence of improvements by defendants. The defendants are strangers to plaintiffs' title, and there was no equitable ground to attach a lien upon the land for improvements, etc. McCannahan v. Smith, 76 Mo. 428; Henderson v. Langley, 76 Mo. 226; Jasper County v. Wadlow, 82 Mo. 172; Malone v. Stretch, 69 Mo. 25; Smith v. Phelps, 63 Mo. 585. In Railroad v. Shortridge, 86 Mo. 662, the improvements were made with consent of plaintiffs. (8) The court did not err in excluding evidence as to whether plaintiffs received by inheritance assets from the estate of Mrs. Hunt equal to the value of the land in controversy. Such proof would constitute no defense to this action of ejectment. Plaintiffs do not inherit or obtain the land from Mrs. Hunt, so that her covenants, if she made any, are not binding on them, and do not affect the right of plaintiffs to the land. Walker v. Deaver, 79 Mo. 674; Ragan v. McElroy, 98 Mo. 349; Barlow v. Delaney, 86 Mo. 583; Schnelle v. Barlow, 34 F. 853; Barlow v. Delaney, 40 F. 97. (9) Rebutter by collateral warranty is not a part of the common law of this country. Goodwin v. Kumm, 45 N.W. 853. (10) The alleged contract with, and conveyance to, Kelley was not champertous, did not concern defendants, and they have no interest in it. Million v. Ohnsorg, 10 Mo.App. 432; Duke v. Harper 66 Mo. 51. (11) That the petition may locate the land in the northwest quarter instead of the northeast will not affect the case. It is such an error as might be corrected by amendment and will be considered as done. The parties agreed that James C. Hunt was the common source of title, and that both parties claim under him. (12) The plaintiffs contend that the matters set up in defendant's answer are res judicata. That the judgment and decree, in the former case of Foote v. Sanders, is binding on the defendant and privies, and settled the status and rights of the parties to the land in question. Crispin v. Hannovan, 50 Mo. 415; Strong v. Ins. Co., 62 Mo. 289; State v. Barker, 26 Mo. 497; Cooley v. Warren, 53 Mo. 166; Wood v. Ensel, 63 Mo. 193; Railroad v. Levy, 17 Mo.App. 501; Preston v. Rickets, 91 Mo. 320.

Wm. Heren and B. R. Vineyard for defendants, appellants.

(1) The words, "grant, bargain and sell," in the deed of Diana Hunt, the mother of plaintiffs, constitute covenants that she was at the time seized of an indefeasible estate in the fee simple of the land in controversy; that the land was free from incumbrances, and for further assurances to be made by her and her heirs. 1 R. S. 1889, sec. 2402, the same language being in all previous revisions of the statutes. Besides, our statute provides that, when all the obligors or promisors shall die, the debt or contract shall survive against the heirs. 1 R. S. 1879, sec. 660; 1 R. S. 1889, sec 2386. (2) The statutory words of "grant," bargain and sell" constitute covenants of warranty, though words of release be added, and though the grantor describe himself as administrator, trustee, or as acting in some other representative capacity. Murphy v. Price, 48 Mo. 247; Altringer v. Capeheart, 68 Mo. 441; Mason v. Caldwell, 5 Gilman (Ill.) 196; 48 Am. Dec. 333, directly in point; Summer v. Williams, 8 Mass. 162; King v. Gilson, 32 Ill. 348. And the granting clause determines the interest intended to be conveyed, and prevails over the introductory statement. 2 Hill on Real Estate, 486, par. 4; Blagg v. Miles, 1 Story's Reports, 427. (3) Covenants in the deed of an ancestor are binding on his heirs to the extent of the assets inherited by them from such ances. tor. Miller v. Bledsoe, 61 Mo. 105; Barlow v. Delaney, 86 Mo, 583; Bates v. Norcross, 17 Pick. 14; R. S. 1845, 220, sec. 8; 2 R. S. 1889, sec. 8839; Russ v. Perry, 49 H. N. 547. (4) The words, "grant, bargain and sell," contain by the statute express covenants of title in fee, and for further assurance, which run with the land. Maguire v. Riggin, 44 Mo. 514; Dickson v. Desire, 23 Mo. 151; Miller v. Bledsoe, 61 Mo. 96; 28 Am. Dec. 271; R. S. 1845, 221, sec. 14; 1 R. S. 1889, 612, sec. 2402; Bates v. Norcross, 17 Pick. 14; Jones v. Whitsett, 79 Mo. 191; Allen v. Kennedy, 91 Mo. 329. And covenants which run with the land operate as estoppels. They are muniments of title. Boyce v. Longworth, 11 Ohio 235; 2 Herman on Estoppel, sec. 672; King v. Gilson, 32 Ill. 348. (5) The court erred in refusing to permit the defendants to prove the champertous contract made between plaintiff Kelley and his coplaintiffs, as set up in their answer. The proof of such a state of facts would preclude plaintiffs, certainly Kelley, from recovering. Million v. Ohnsorg, 10 Mo.App. 432; Duke v. Harper, 66 Mo. 51. (6) It is not necessary that eviction should occur before the grantee or his assigns can assert his or their rights under the covenants in the deed of the original grantor. Dixon v. Desire's Adm'r, 23 Mo. 151. (7) A court of equity will take jurisdiction to avoid a multiplicity of suits. Biddle v. Ramsey, 52 Mo. 153. And where the party proceeded against is insolvent. Fox v. Hubbard, 79 Mo. 390. And where injustice would be done even though there is an adequate remedy at law. Pratt v. Clark, 57 Mo. 189; Stewart v. Caldwell, 54 Mo. 536; Saving Inst. v. Collonious, 63 Mo. 290. And to avoid circuity of action. Alexander v. Relfe, 74 Mo. 495. And when a court of chancery obtains jurisdiction it will not stop short of complete justice between all the parties. Sav. Inst. v. Collonious, 63 Mo. 295; Pomeroy v. Benton, 57 Mo. 550. And this equitable jurisdiction may be invoked by and in a cross-bill or cross demand. Barnes v. McMullins, 78 Mo. 260. (8) The heirs of Diana Hunt, being liable on the covenants in the deed of their mother to the extent of the assets received from her estate, may be proceeded against on these covenants jointly. Walker v. Deaver, 79 Mo. 79. (9) And the heirs of Diana Huntare estopped or rebutted from claiming the land sued for, they having inherited assets from her of greater value than the land, and this estoppel or rebutter may be properly set up against the heirs by way of defense, as in the case at bar. 1 Wash. on Real Prop. p. 255 (* p. 207) sec. 20; Russ v. Perry, 49 N.H. 547; Bates v. Norcross, 17 Pick. 14; 3 Wash. on Real Prop. p. 480 (* p. 667), sec. 32; Cole v. Raymond, 9 Gray, 217; 2 Herman on Estoppel, p. 806, sec. 672, and the long list of authorities there cited; Ragan v. McElroy, 98 Mo. 349; Broadwell v. Merritt, 87 Mo. 95, 102. (10) Defendants should have been permitted to prove the allegations in their answer relative to purchase money and taxes paid and improvements made, and on accounting thereof should have been taken and judgment rendered for the amount due, to be made a lien on the land. Rilaroad v. Shortridge, 86 Mo. 662; Sims v. Gray, 66 Mo. 613; Mobley v. Nave, 67 Mo. 546. (11) Mrs. Diana A. Hunt bound herself by the covenants in the deed made by her, even though she thought she was conveying only her life-estate, and in addition was, as guardian, conveying the title of her children. If she was not in fact their guardian, or did not convey any of their title by her deed, she still bound herself by the covenants therein. A person acting in a representative capacity binds himself, if he exceeds his authority, and does not bind his principal. Murphy v. Price, 48 Mo. 249 at bottom. One assuming to act for another is always liable unless h...