Gardiner v. McPike

• Decision Date: 04 April 1916
• Docket Number: No. 14198.,14198.
• Citation: 184 S.W. 956
• Parties: GARDINER v. McPIKE.
• Court: Missouri Court of Appeals

184 S.W. 956

GARDINER v. McPIKE.

No. 14198.

St. Louis Court of Appeals. Missouri.

April 4, 1916.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by John Gardiner against James E. McPike. From a judgment for plaintiff, defendant appeals. Affirmed.

Hostetter & Haley, of Bowling Green, for appellant. R. L. Motley, of Bowling Green, and Pearson & Pearson, of Louisiana, Mo., for respondent.

ALLEN, J.

This is an action for the alleged breach of covenants of warranty and seisin in a deed. Plaintiff recovered below, and the case is here on defendant's appeal.

By warranty deed of August 18, 1903, the defendant, James E. McPike, a resident of Pike county, Mo., conveyed to one Spevak two tracts of land in Harris county, Tex., one purporting to be a tract of 711.4 acres, constituting section or survey No. 14, located by virtue of a certificate issued by the state of Texas to the "H., T. & B. R. R. Co.," and being also described in the deed by metes and bounds. With the other tract conveyed we are not here concerned. By warranty deed of September 26, 1903, Spevak conveyed the two tracts of land to John Gardiner, Jr., plaintiff herein, a resident of Ohio.

It appears that plaintiff leased the lands so acquired by him to one Howell for a period of five years at a nominal rental; the lease terminating on January 1, 1909. Plaintiff testified that he inspected the tracts before purchasing them, and had the supposed lines pointed out to him, and that he visited the property every year thereafter. In the latter part of 1908 Howell leased section or survey 15, lying immediately west of section or survey 14, and which was owned by one Mochel and one Homrighous, jointly. In January, 1909, plaintiff visited his property, and found that Howell, or his subtenants, had plowed a strip of ground beyond the line supposed by him to be the true line between sections 14 and 15, and consisting of 199.7 acres of the tract of 711.4 acres which the defendant's deed purported to convey.

The evidence shows that upon discovering this plaintiff conferred with Mochel and Homrighous, and found that they claimed the strip of land in question, asserting that the true line between sections 14 and 15 was located at the eastern boundary line of said strip, and that the same was a part of section 15, to which they had title. In March, 1909, plaintiff instituted suit in the district court of Harris county, Tex., against Mochel and Homrighous and their tenants, to determine the title to the strip of land mentioned. At or about this time, pursuant to an agreement between the rival claimants, Mochel and Homrighous gave to plaintiff a bond conditioned that they would account to plaintiff for the rents and profits of the strip of land in controversy in the event that he were successful in establishing title thereto. Plaintiff was unsuccessful in the suit; the court by its decree fixing the boundary line between sections 14 and 15 in accordance with the contention of Mochel and Homrighous. This decree was entered on December 9, 1911. On June 7, 1913, plaintiff instituted this action against defendant, McPike, to recover for a breach of the warranties contained in the latter's deed to Spevak. McPike had been made a defendant in the suit in Texas, in accordance with the practice in that state, and the evidence shows that he was notified of the pendency thereof; but he was not duly brought in by process, and prior to trial the cause was dismissed as to him.

The purchase price paid by Spevak to McPike amounted to $17.50 per acre; and Spevak sold the lands to plaintiff for $22.50 per acre. Plaintiff was permitted to show various items of expense incurred in and about the prosecution of the suit in Texas, which need not be here set out. The jury returned a verdict in plaintiff's favor for $3,868.63; but plaintiff remitted $17.63, and judgment was entered for him in the sum of $3,851.

I. Appellant urges that its demurrer to the evidence should have been sustained for the reason that plaintiff's cause of action was barred by the statute of limitations in force in the state of Texas. Under the Texas statute in evidence and the decisions of the courts of that state it appears that the Texas law allows but four years for the bringing of an action of this character. If the Missouri statute is applicable, the suit was brought in ample time. But it appears to be conceded that the Texas law applies, as the trial court held; the contention between counsel being as to the time when the statute began to run. On this phase of the case we shall therefore confine ourselves to this one question in dispute, assuming, without deciding, that the action is governed by the "four-year statute" of Texas.

The contention of learned counsel for appellant is that plaintiff's cause of action accrued when the tenants or subtenants of Mochel and Homrighous entered upon and plowed the strip of land in question in January, 1909, which was more than four years prior to the institution of this action. On the other hand, the contention of respondent's learned counsel, which was the theory upon which the trial court proceeded, is that plaintiff's cause of action did not accrue until the entry of judgment in the suit in Texas, to wit, December 9, 1911, which was less than two years prior to the institution of this action.

A consideration of this question has led us to the conclusion that the statute of limitations did not begin to run until the entry of judgment in the suit in Texas. It is true that the decisions of that state, as do our own, hold that a covenantee need not wait until he is actually evicted, either by a judgment of eviction or otherwise, but upon the assertion of a paramount title by a claimant to the land he may either surrender possession to the holder of the paramount title, or purchase the latter's claim, and proceed against his covenantor as for a breach of the latter's covenants; the burden then being upon the covenantee to show that the title to which he surrendered, or which he purchased, was in fact the paramount title. See Groesbeck v. Harris, 82 Tex. 411, 19 S. W. 850; Johns v. Hardin, 81 Tex. loc. cit. 41, 16 S. W. 623; Clark v. Mumford, 62 Tex. loc. cit. 535; Leet v. Gratz, 124 Mo. App. 394, 101 S. W. 696; Eaker v. Harvey, ...