"The case in hand may be stated to be, in substance, this: While plaintiff and defendant were both residents of the state of Indiana, the defendant, by deed, conveyed to the plaintiff certain lands in that state, in which deed the following covenants were contained; that is to say, that the title so conveyed is clear, free, and unincumbered, that the grantor is lawfully seised of the premises as of a sure and indefeasible estate of inheritance in fee simple, and that the grantor will warrant and defend the same against all claims whatsoever. It is conceded that at the time of the execution of said deed the defendant had title to only an undivided two thirds of said land, and that his two daughters and son had title to the other one third. It is further conceded that shortly after the execution of said deed by defendant his two daughters conveyed their interests in said land to the son, who thereupon commenced a suit in partition against the plaintiff herein. It is not disputed in the evidence that the plaintiff gave the defendant timely notice of the commencement of the said partition suit, and requested him to defend the same, and that this defendant refused to do. The plaintiff then employed a firm of reputable lawyers, who appeared for him in said partition case, and filed an answer. Nor is it disputed that the services performed by the plaintiff's lawyers in and about defending the partition suit were reasonably worth the amount he paid them therefor. It appears that after the defendant had refused to defend said partition suit, and the plaintiff had taken such steps in that direction as he had been advised by his attorney were necessary for him to take, the defendant's son executed and delivered to plaintiff a deed conveying to him the outstanding title to one-third interest in the said land, by which said conveyance the plaintiff's title became perfect. The defendant's son then dismissed the partition suit, paying the court costs that had accrued therein. The plaintiff brought this action on the covenants contained in the said deed made by defendant to plaintiff, and hereinbefore set forth, to recover the amount laid out and expended by him for fees paid his attorneys in said partition suit, and for the cost of an abstract of title to said land. The plaintiff had judgment in the trial court, and the defendant appealed. The defendant's deed to the plaintiff, as has been seen, contained not only a covenant of seisin, but the further covenant that defendant would warrant and defend the title so conveyed against all claims whatsoever. If at the time of the execution of the deed the defendant was not seised, then no title passed, and the covenant was broken when made. The plaintiff in the partition suit asserted a paramount adverse
title to an undivided third interest in the land, and if the defendant herein, after he had been notified of the commencement of the said partition suit, refused to defend the same, then there was a breach of the covenant for quiet enjoyment as well. For these breaches of the covenants of the warranty the plaintiff was entitled to recover of the defendant, in an appropriate action, such damages as were given by the lex loci contractus. There is no evidence contained in the record of the laws of the state of Indiana relating to the measure of damages where there is a breach of one or both of the covenants just mentioned. There is no proof of the statutes or the decisions of that state relating to the subject disclosed by the record. We cannot take judicial notice of the statutes and decisions of sister states. Where a cause of action or defense interposed is based upon the law of another state, that law must be both pleaded and proved; but when it is not the basis of the action or defense, and is merely an evidential part thereof, it may be proved without being pleaded. Clark v. Barnes, 58 Mo. App. 667. The common law was in force in the territory of Indiana at the time of its admission into the Union as a state. It is only in respect of those states which were never subject to the common law that, in the absence of proof as to the lex loci contractus, the court will apply the statute laws of the forum. Flato v. Mulhall, 72 Mo. 526; White v. Chaney, 20 Mo. App. 389; Barhydt v. Alexander, 59 Mo. App. 189; Manufacturing Co. v. Lang, 54 Mo. App. 147. On common-law questions the presumption is that the common law of another state is the same as that of our own state. White v. Chaney, supra. As the only question presented by the record for decision is that of the measure of damages, we think it is obvious, from the principles just adverted to, that it must be resolved in the light of the common law. `The weight of American authority,' says Judge Scott in Lawless v. Collier's Ex'rs, 19 Mo. 481, `has determined that the covenant of seisin is broken, if broken at all, as soon as it is made, and thereby an immediate right of action accrues to him who has received it. * * * The damages to be recovered are measured by the actual loss at that time sustained.' The authorities are agreed that where this covenant is broken the covenantee is entitled to recover no more than nominal damages (Collier v. Gamble, 10 Mo. 467; Bircher v. Watkins, 13 Mo. 522) until he had bought in the adverse right, or has been actually `deprived of the whole subject of his bargain,' in either of which latter events he has the right to recover substantial damages. Holladay v. Menifee, 30 Mo. App. 207; Lawless v. Collier's Ex'rs, supra; Henderson v. Henderson's Ex'rs, 13 Mo. 153; Walker's Adm'r v. Deaver, 79 Mo. 664; Dickson v. Desire's Adm'r, 23 Mo. 166; Magwire v. Riggin, 44 Mo. 514; City of St. Louis v. Bissell, 46 Mo. 157; Hutchins v. Roundtree, 77 Mo. 500; Lambert v. Estes, 99 Mo. 608, 13 S. W. 284; Matheny v. Stewart, 108 Mo. 73, 17 S. W. 1014. And whatever may be the technical or the practical rule as to the measure of damages upon total breach of the covenant of seisin, it is well settled that upon a partial breach a purchaser may, and it seems must, recover pro tanto. Rawle, Cov. § 180, and cases cited in note 4; Guthrie v. Pugsley, 12 Johns. 126; Collier v. Gamble, supra. The measure of damages upon breach of covenant of seisin and the right to convey is, as a general rule, the purchase money, interest, and costs. Collier v. Gamble, supra; Bircher v. Watkins, supra; Lawless v. Collier's Ex'rs, supra; Rawle, Cov. §§ 184, 186; Overhiser v. McCollister, 10 Ind. 41, and numerous cases cited in briefs of plaintiff's counsel. No case that we have seen has extended the rule beyond this. It would seem that the damages claimed by plaintiff are not allowed for breach of the covenant of seisin. But is the plaintiff entitled to recover the damages claimed for a breach of the covenant to `warrant and defend the title against all claims whatever'? Littleton tells us that, `although the words "warrant and forever defend" were those generally inserted in a warranty, yet the word "defend" added no additional force, as it seemeth that hath not the effect of warrantee, nor comprehendeth in it the cause of warrantee.' Co. Litt. 101.
"In Rawle, Cov. § 116, it is stated that: `Apart from the word "warrant," the covenant would seem to be no more than an engagement that it should bar the covenantor and his heirs from ever claiming the estate, and that he and they should undertake to defend it when assailed by a paramount title. The latter was, indeed, one of the consequences of a warranty deed, and its effect in this respect has been continued, though with modifications, down to this day.' And the same author further along (section 117) states that `it is settled in most, if not all, of the United States, that in general, upon suit being brought upon a paramount claim against one who is entitled to the benefit of any of the covenants of warranty, he can, by giving notice of the action to the party bound by the covenants and requiring him to defend it, relieve himself from the burden of being obliged to prove in an action on the covenants the validity of the title of the adverse claimant.' The covenant of warranty or for quiet enjoyment is a covenant of indemnification, whose object is to compensate the covenantee for his actual loss at the time of the breach. In Field, Dam. § 467, it is said that: `The decisions...
