Hunt v. Marsh

• Decision Date: 31 October 1883
• Citation: 80 Mo. 396
• Parties: HUNT et al. v. MARSH et al., Appellants.
• Court: Missouri Supreme Court

80 Mo. 396

HUNT et al.

v.MARSH et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

C. O. Tichenor for appellant.

The covenant against incumbrances was broken when plaintiffs executed the deed. Williamson v. Hall, 62 Mo. 405; Kellogg v. Malin, 50 Mo. 496. The dower interest outstanding when plaintiffs executed the deed, in the widow of their grantor, was an incumbrance. Darrett v. Peper, 58 Mo. 551. It is true the dower interest has not been satisfied by defendants, yet the land is lessened in value to the extent of the incumbrance, which is not a personal claim on plaintiffs; their liability is measured by these covenants, which are broken, and when the damage is paid, there can be no further liability. The taking of the note sued upon, bearing the same date as the deed, is a waiver of the lien, at least in absence of evidence on part of vendors, to show that they had a different intent. Durette v. Briggs, 47 Mo. 362, and cases cited.

W. E. Sheffield for respondent.

The demurrer to the second defense was properly sustained, as defendants could not set it up while they retained possession of the premises. 15 Mo. 387; 17 Mo. 332. The acceptance of the note signed by Wm. N. Marsh, was, under the circumstances of this case, no waiver of the vendor's lien. 52 Mo. 96; 68 Mo. 198.

MARTIN, C.

This was a suit in equity to enforce a vendor's lien against certain real estate near Kansas City, and to obtain judgment on the note which was given for the purchase money for which the lien was claimed. Ellen L. Hunt, the wife of Robert H. Hunt, was owner of the land, and alleges in her petition that on the 15th day of April, 1875, she sold the land in controversy to William N. Marsh, defendant; that at the request of said William N. Marsh, she, joining with her husband, made conveyance of the land in question to A. Marsh and Fennimore C. Marsh, defendants, who were the wife and son of said William N., for the consideration of $1,309.88; that said William N. paid down the sum of $436.63, leaving a balance of $873.35 unpaid, for which he delivered to plaintiff a promissory note in the amount thereof payable to her, signed by said A. Marsh, F. C. Marsh and by said William N., who added to his signature the word ““security;” that said William N. paid two installments of interest on the note, leaving the principal thereof still due with interest; that after the purchase said William N. entered into possession of the premises so conveyed, and is still in the possession thereof; that said Ellen L. Hunt is entitled to a vendor's lien for the purchase money so remaining unpaid, and, therefore, asks for a judgment on the note and a decree enforcing it against the land.

The answer purports to set forth two defenses. In one it is alleged that the deed of conveyance contained covenants of warranty and against incumbrances, which had been broken by the existence of a right of dower still outstanding; that the dower right is worth $800; that the vendees have been damaged in said sum by reason of the breach of covenants aforesaid, which they asked to be allowed against the note sued on.

In the other defense it is alleged that the right to a lien was waived by Mrs. Hunt, when she accepted a note for the purchase money, signed by said Wm. N. Marsh, as mentioned in the petition.

On motion of plaintiffs, the defense relating to the lien was stricken out. The plaintiffs demurred to the other defense relating to breach of covenants, and the court sustained the demurrer. This action of the court left the defendants without any defense to the suit, and judgment was rendered according to the prayer of the petition, from which they have appealed.

The court did not err in sustaining the demurrer to the defense on the covenants. It failed to state an eviction either actual or constructive. It also failed to state a payment of the dower or other extinguishment of the dower right. It has long been settled that these covenants run with the land and inure to the owner who suffers ouster or who is compelled to extinguish the incumbrance to save his estate. No substantial injury happens before this, and no right of action accrues before. Dickson v. Desire, 23 Mo. 151; Ward v. Ashbrook, 78 Mo. 515; Jones v. Whitsett, 79 Mo. 188. The vendees being in possession of the land purchased by them, can make no such defense against a suit on the notes for the purchase money. Pershing v. Canfield, 70 Mo. 140; Cartwright v. Culver, 74 Mo. 179.

The action of the court in striking out the defense relating to a waiver of the lien claimed...