Herryford v. Turner

• Decision Date: 30 April 1878
• Citation: 67 Mo. 296
• Parties: HERRYFORD v. TURNER, Appellant.
• Court: Missouri Supreme Court

67 Mo. 296

HERRYFORD

v.TURNER, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Howard Circuit Court.--HON. G. H. BURCKHARTT, Judge.

Sam'l C. Major, Jr., and Russell B. Caples for appellant

In every contract for the sale of lands there is an implied warranty, yet such implied warranty exists only as long as the contract remains executory; upon the execution of the contract by deed, the law throws upon the purchaser the responsibility of caring for his own protection by suitable express covenants. Burwell v. Jackson, 5 Selden (N. Y.) 536; Rawle Cov. of Title, pp. 458, 465; Fox v. Mackreth, 2 Bro. Ch. 420; Turner v. Harvey, 1 Jac. Ch. 178; Pothier de ventes, n. 334, 295; Platt v. Gilchrist, 3 Sandf. S. C. (N. Y.) 118.Herndon & Herndon for respondent.

From the facts stated in the petition the law will imply a promise and an obligation on the part of defendant to convey the land to plaintiff relieved from encumbrances, to do what was and must have been the intention of the parties should be done. Lewis v. Atlas Mut. Life Ins. Co., 61 Mo. 538.

HOUGH, J.

It was alleged in the petition in this case, that, at a trustee's sale made on the 5th day of December, 1872, by Thomas E. Burch, as trustee, the defendant, Turner, purchased certain real estate for the sum of $8,746.27; that, afterwards, on the 14th day of December, 1872, said Turner sold said real estate to plaintiff for $7,000 in cash, and certain real estate in Glasgow, Mo., estimated to be worth $2,000, which was conveyed to the defendant; that, at the time of the sale of said land by the defendant to the plaintiff, no deed had been executed by the trustee, Burch, to the defendant, and, at the special instance and request of the defendant, the plaintiff consenting thereto, said trustee made a conveyance directly to the plaintiff; that at the time of the purchase by the defendant, at the trustee's sale, and when he sold to the plaintiff, the land so conveyed by the trustee was incumbered for taxes to the amount of $456.81, which the defendant knew; that the defendant was legally bound to pay off and discharge said incumbrances, which were upon the land at the date of his sale thereof to the plaintiff, but that he failed and refused to do so, and thereupon the plaintiff paid the same, and instituted the present action to recover from the defendant the amount so paid. The plaintiff had judgment in the court below, and the defendant has appealed. The averments of the petition sufficiently set forth the plaintiff's case, as developed at the trial, and omitting all reference to the questions raised by the motion for a new trial, we will proceed to determine the sufficiency of the petition, the defendant having moved to arrest the judgment for the reason that it did not state facts sufficient to constitute a cause of action.

Is the defendant legally liable to the plaintiff, on the facts stated, for the amount of the taxes paid by him? It seems to be generally maintained by the authorities that upon an...