Hall v. Bray

• Decision Date: 31 January 1873
• Parties: C. L. HALL, Respondent, v. N. BRAY, Appellant.
• Court: Missouri Supreme Court

51 Mo. 288

C. L. HALL, Respondent,

v.N. BRAY, Appellant.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Jasper Common Pleas Court.

N. Bray, pro se.

L. P. Cunningham & J. F. Hardin, for Appellant.

I. If a covenantee surrenders to one having a paramount title after the person holding the paramount title has hostilely asserted the same, he may maintain his action on the covenant in the deed but if he does so without actual eviction he takes on himself the burthen of proof that the covenantor at the date of the deed had no title, and this he must prove affirmatively. It is not enough that he show title in another person. (Rawle on Cov. of Title, 3d. Ed., § 249-50-51; Ib., 265; More vs. Vail, 17 Ill., 190; Loomis vs. Bedell, 11 N. H., 74; Turner vs. Goodrich, 26 Vt., 709; Rawle on Cov. Tit., 228, 3d Ed.; Funk vs. Creswell, 5 Clark, Iowa, 89; Patton vs. McFarlane, 3 Penn., 419; Dickson vs. Vories, 7 Watts, L. S., 409.)

II. Plaintiff has purchased in what purports to be paramount title without being disturbed.“The title and the conveyants acquired are not disturbed by the mere existence of an outstanding paramount title, and he has no right to assume that it ever would be, until he actually feels the pressure upon him by a demand for possession, and a hostile assertion of that title.”

III. That being the case the judgment of the court below must be reversed. (More vs. Vail, 17 Ill., 190; Hannah vs. Henderson, 4 Ind., 174; Stewart vs. West, 14 Penn. St., 338; Beebe, vs. Swartwout, 3d Gilm., 179; Hagler vs. Simpson, 1 Busbee N. C., 386; Witty vs. Hightower 12 S. & M., 478; Burrus vs. Wilkinson, 31 Miss., 537.)

IV. In Kentucky it is held that the covenantee cannot hold the possession and sue on the covenant. He must place the covenantor where he found him if he intends to rely on the covenants in the deed. (Vanmeter vs. Griffith, 4 Dana, 97.)

V. The judgment in this case should be reversed. The petition does not state facts sufficient to constitute a cause of action. It is a well settled rule in pleading on a covenant in a deed for the sale of land, that an eviction must be averred (Chitty Plead., 543; Clark vs. McNulty; 3 Serg. & Rawle, 372; Paul vs. Witman, 3 W. & Serg., 410; Hannah vs. Henderson, 4 Ind., 174.) In this case it is not done according to any rule of pleading.

VI. This case cannot be sustained. The court in which the judgment was rendered had no jurisdiction over the defendant or the subject of the action. The act of the legislature of the State, constituting said court is unconstitutional and void, because it is not a general law, but is local and special in its nature and operation. A general law could have been made applicable to common pleas courts throughout the state. (§ 27, Art. 4, Const. of Mo.; Bacon's Ab. Vol. 9, 231; 3 Ind., 258; 4 Ind., 343; 5 Ind., 4 and Id. 557.)

VII. The act establishing the Common Pleas Court of Jasper county was affirmed on the 4th of March, 1869. (Sess. Acts, 1869, p. 170.) This act was amended and its powers largely increased by act of the General Assembly of the State, approved Feb. 1st, 1870. (Sess. Acts 1870, p. 197. See 4 Ind. 347-8; 5 Ind., 4.)

W. H. Phelps, for Respondent.

I. In an action on the covenant of seizin; it is not necessary to allege by way of breach an ouster or eviction. All that is necessary is to negative the words of the covenant. (Sedgw., Meas. Dam., 3d Ed., 181; 4 Kent Com., 479; Rawle on Cov., 53, 54, 55; 14 Johns. 248.)

II. Where the vendee has bought in an outstanding title, the measure of damage is the amount paid for the title outstanding, if it does not exceed the purchase money paid by the vendee to the vendor. (Lawless vs. Colier's Ex., 19 Mo., 480; Collier vs. Gamble, 10 Mo., 467.)

VORIES, Judge, delivered the opinion of the court.

This action was brought by Hall against Bray to recover damages for the breach of the covenant of seizin, created by the words “grant, bargain and sell,” contained in a deed executed by Bray to Hall, the plaintiff, on the 4th day of February, 1868, conveying to Hall a tract or lot of land described as lot numbered ten, in the town of Carthage in Jasper county, Missouri.

The breach assigned in the petition is “that at the time of the execution and delivery of the deed, the defendant was not seized of an indefeasable estate in said lot; that one Ethelbert Bright held an outstanding and paramount title to the same;” that in order to the perfection of plaintiff's title he was compelled to and did buy in said outstanding title, for which he paid six hundred dollars.

Judgment was asked for four hundred dollars and interest, the amount charged to have been paid by the plaintiff to the defendant for the lot.

The answer admits the conveyance of the lot as stated in the petition, but denies that the defendant was not at the time the owner of the lot in fee simple; states that at the time of the conveyance he was in the possession of the lot; that he then put plaintiff into the peaceable and uninterrupted possession thereof; and that plaintiff, together with those holding under him, has continued in said possession, and that on the 7th day of October, 1868, plaintiff sold and conveyed said lot to one John A. Carter, who then entered into the possession of said lot under said purchase, and that plaintiff and those claiming under him, are still in the peaceable and uninterrupted possession of said lot, their possession and right having never been questioned. The answer also denies the title of Bright, or that any other person ever had or held an outstanding or paramount title to said lot, or that plaintiff was compelled to, or did, purchase in the same.

A replication was filed to this answer, by which plaintiff denied that the defendant at the time of the conveyance was in the possession of the lot, or that he then put plaintiff in possession, or that plaintiff sold and conveyed the lot to said Carter, or that the title to the lot had never been questioned.

A trial was had before the court no jury being required by the parties.

It is conceded by the appellant, that the plaintiff on the trial showed title to the lot in one Ethelbert Bright, and a conveyance of the lot from Bright to W. H. Phelps, and from Phelps to one John A. Carter, for the east half of the lot, and from said Carter to Hall, the plaintiff; it is also shown by the evidence that plaintiff paid Carter $433 29 for the east half of the lot, and that said east half was reasonably worth from six to seven hundred dollars.

On the part of the defendant it was shown on the trial, that plaintiff after his purchase from defendant at once took possession of the lot by virtue of the purchase, and that he and those claiming under him had continued to hold and occupy said lot ever since.

The defendant also read in evidence a deed from plaintiff to John A. Carter, dated October 7th, 1868, by which the plaintiff conveyed to Carter the east half of said lot for two thousand dollars.

This being all of the evidence offered by either party, the Court at the request of the plaintiff, declared the law to be:

“That if the defendant conveyed said lot to plaintiff by deed containing the covenants of an indefeasable estate in fee simple, and at the time of the execution of said deed there was an outstanding title which plaintiff was required to buy in in order to perfect his title, and that plaintiff did so purchase said outstanding title, he is entitled to recover the amount paid for said title, if the amount is not more than the property is reasonably worth, provided it does not exceed the amount paid by plaintiff to defendant for his deed to said lot.”

To this declaration of law the defendant excepted.

The defendant then requested the Court to declare the law to be:

“That under the evidence in this case the plaintiff can only recover nominal damages.”

The Court refused this declaration of law and the defendant again excepted.

Judgment was then rendered for the plaintiff for the sum of $447 75. The defendant filed his several motions for a new trial and in arrest of judgment, which being severally overruled, he again excepted and appealed to this Court.

It is contended by the appellant in this Court that to entitle the plaintiff to recover in this case, it was necessary for him to have alleged in his petition and proved on the trial, an eviction, or at least he should have shown facts amounting to a constructive eviction; and it is further insisted that no such evidence was given on the trial of the cause, and that there were no sufficient allegations of eviction in the petition to authorize a recovery; that the Court below therefore erred in giving and refusing the declarations of law given and refused, and in overruling appellant's motion in arrest of the judgment.

We do not agree with the appellant in reference to these objections. The law has been well settled in this State, as well as by other...