Isaac Walker's Adm'r v. DeAver

• Court: Missouri Court of Appeals
• Writing for the Court: BAKEWELL
• Citation: Isaac Walker's Adm'r v. DeAver, 5 Mo.App. 139 (Mo. App. 1878)
• Decision Date: 22 January 1878
• Parties: ISAAC WALKER'S ADMINISTRATOR, Respondent, v. JAMES A. DEAVER ET AL., Appellants.

5 Mo.App. 139

ISAAC WALKER'S ADMINISTRATOR, Respondent,

v.JAMES A. DEAVER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 22, 1878.

1. A covenant that the grantor will warrant and defend the land conveyed, “against all persons, claims, liens, titles, and encumbrances whatever,” includes a covenant against encumbrances upon which a recovery may be had.

2. A covenant against encumbrances is a continuing covenant enuring to the benefit of the grantee upon whom the loss may fall in regular line of

succession, but upon the breach of which only nominal damages can be recovered before a loss occurs.

3. Damages for a breach of a covenant against encumbrances is not limited to the amount of the purchase-money. The measure of damages is the amount paid, if reasonable, to extinguish the encumbrance, whether it exceeds the purchase-money or not; and the question as to whether the amount paid was reasonable is one for the jury.

4. In a suit against the covenantor for the breach of a covenant against encumbrances, the record of a recovery against the covenantee, to which the covenantor was neither party nor privy, and of which he had no notice whatever, is not conclusive upon him as to the reasonableness of the amount paid to extinguish the encumbrance; nor is the mere fact of payment any evidence whatever of what the encumbrance was worth.

5. Dower must be assigned under the law in force at the date of the husband's death.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

E. CASSELBERRY, for appellants: A widow is not entitled to dower until her husband's debts shall have been paid.-- Kennerly v. Insurance Co., 11 Mo. 204; Montrose v. Vallé, 19 Mo. 621. A covenantor is not liable for the increased value of property.-- Staats v. Ten Eyck, 3 Caines, 111; Pitcher v. Livingston, 4 Johns. 1. But only for the value at the time of the purchase.-- McLanahan v. Porter, 10 Mo. 746. In this case, the covenantor was not liable for more than an annuity equal to six per cent per annum on one-third of the consideration-money, nor is he liable for costs of the suits against the covenantee.-- Dickson v. Desire, 23 Mo. 151; Collins v. Clamorgan, 6 Mo. 169; Duncan v. Sharp, 7 Mo. 71; Reese v. Smith, 12 Mo. 344; Long v. Matthews, 23 Mo. 347. Where there is a partial failure of title, the proportional part which the failure bears to the whole consideration, only, can be recovered.--Sedgw. on Dam. 198, 203; Field on Dam. 374, 379; Rawle on Cov. 296; 4 Kent's Comm. 477; Dimmic v. Lockwood, 10 Wend. 142; Grant v. Tallman, 20 N. Y. 191; Cox v. Henry, 8 Casey, 21; Williams v. Williams, 5 Fost. 229; Brady v. Spurk, 27 Ill. 482; Thomas v. Mallinkrodt, 43 Mo. 58; O'Flaherty v. Sutton, 49 Mo. 583. A judgment against one who had no notice of the proceeding is void.-- Smith v. Ross, 7 Mo. 63; Galaher v. Gates, 20 Mo. 236.

SAMUEL REBER, for appellants: The record of a judgment against the covenantee by the holder of the encumbrance is not evidence of the damage occasioned by the breach of a covenant against encumbrances.-- Fields v. Hunter, 8 Mo. 128; Fallon v. Murray, 16 Mo. 168; Mortland v. Smith, 32 Mo. 225; Owings v. Hull, 9 Pet. 607; The City v. Bissell, 46 Mo. 157; King v. Newman, 4 C. B. 884; 2 Whart. on Ev., sec. 823. The recovery should have been on the covenant of warranty.-- Shelton v. Pease, 10 Mo. 473. Measure of damages.-- Dickson v. Desire's Administrator, 23 Mo. 151; Murphy v. Price, 48 Mo. 247; Hall v. Bray, 51 Mo. 288-292; Rawle on Cov. 235 (4th ed.); Tong v. Matthews, 23 Mo. 437; Brandt v. Foster, 5 Iowa, 287; Wager v. Schuyler, 1 Wend. 553; Johnson v. Nyce's Executors, 17 Ohio, 66.

J. M. & C. H. KRUM, for respondent: Estoppel.--Scribner on Dower, 217. Ouster; eviction.--Rawle on Cov. 147 et seq.; Moore v. Vail, 17 Ill. 190; Magwire v. Riggin, 44 Mo. 512. A widow takes dower under the law in force at the time of the husband's death. The measure of damages for the breach of a covenant against encumbrances is the amount the covenantee was compelled to pay to extinguish the encumbrance.-- Henderson v. Henderson, 13 Mo. 151; Mosely v. Hunter, 15 Mo. 322; City of St. Louis v. Bissell, 47 Mo. 157; Prescott v. Freeman, 4 Mass. 627; Willet v. Burgess, 34 Ill. 494; Carter v. Bradley, 7 R. I. 538; Fawcett v. Wood, 5 Iowa, 400; Johnson v. Britton, 23 Ind. 165; Kelley v. Low, 18 Maine, 244.

BAKEWELL, J., delivered the opinion of the court.

This is an action brought against defendants, the children and heirs of Larkin Deaver, deceased, to recover an amount claimed to have been paid to extinguish an encumbrance on property sold with warranty to the ancestor of defendants. The petition alleges that plaintiff is the administrator de bonis non of Isaac Walker, deceased; that on Feb. 21, 1830, Larkin Deaver, in consideration of $5,000, conveyed to Joshua Walker a lot in St. Louis, and that, by said deed, Deaver covenanted that the said premises “were free and clear of all encumbrances,” and also that he would warrant and defend the said premises against the lawful demands of all persons whomsoever; that Joshua Walker, by a deed with like covenants, on Oct. 5, 1833, conveyed the same premises to Isaac Walker, plaintiff's testator; and that on June 1, 1857, Isaac Walker, in consideration of $78,760, conveyed the same premises, by deed containing similar covenants, to Mary L. Tyler; that Deaver acquired the premises of Thomas B. Houghan, Dec. 30, 1829, by deed containing the same covenants as are in the deed from Deaver to Walker, the consideration being $5,000; that on Oct. 20, 1863, Sophia Houghan, claiming to be the widow of Thomas B. Houghan, commenced proceedings against Mary L. Tyler for her dower in these premises, of which proceedings Tyler gave due notice to Isaac Walker, and Walker gave due notice to defendants, requesting them to defend; that in these proceedings, Sophia Houghan, on June 14, 1864, recovered judgment for $453.35 and costs, and also for $650, the yearly value, to be paid to her for life; that Tyler paid the damages and costs so recovered, and at once instituted suit against Isaac Walker, on the covenants in his deed, to recover the amount paid by her on the Houghan judgment; that Tyler recovered against Walker, and that Walker paid Tyler the full amount so recovered by her, and costs; that Tyler, to the year 1869, paid Houghan yearly $650, the yearly amount recovered against her by Houghan in said suit, which amounts were, on demand, repaid to her by Isaac Walker; that after Isaac Walker's death, up to June, 1872, these amounts were paid annually by Tyler to Houghan, in June of each year, and were yearly, during the same month, repaid by Walker's executor to Tyler; that, in January, 1873, plaintiff was appointed administrator de bonis non, cum testamento annexo of Walker; and that Tyler, in June, 1873, and June, 1874, paid the same annual amount to Houghan, on account of her judgment, which amounts were regularly demanded by Tyler of plaintiff as administrator, and paid by him, amounting to $1,300; that Deaver is dead, his estate finally settled in 1856, and that defendants are his heirs. Plaintiff says that the encumbrance of the Houghan dower was a breach of Deaver's covenant that the premises conveyed were free and clear of encumbrances, and asks judgment for the amount paid as aforesaid by Walker during his life, and also for the annual amounts paid by the executor of Walker and by the plaintiff to Tyler.

The answer of defendants puts in issue every allegation of the petition, and says that they are not the proper parties defendant, and that the only proper defendant is the administrator of Deaver; that the land did not increase in value whilst Deaver owned it; that Houghan died insolvent, and owning no property whatever, and that his widow is not entitled to dower, under the act in force at the date of the Houghan deed, until Houghan's debts are paid; and that, as a recovery in this case would create a debt against Houghan, she is not entitled at all; that the lot and buildings, when sold by Deaver to Walker, were worth together only $5,000, of which the buildings were $4,000; that Isaac Walker tore down these buildings, and that, if plaintiff recover damages, they must be measured by the value of the premises when sold by Deaver, without the improvements, which is only $1,000. Defendants further say that Deaver and Joshua Walker never had any interest in the property, except as trustees of Isaac Walker, and that the deeds to Deaver and to Joshua were made for the sole use of Isaac Walker. This last allegation of the answer is denied by the replication. The other new matter of the answer was stricken out on motion.

On the trial, the deeds mentioned in the petition were introduced; also the record of the suit of Houghan v. Tyler, showing judgment as claimed; and also the record of a judgment obtained by Tyler, against Isaac Walker, for the amount of damages recovered in the Houghan suit, and costs. Plaintiff also introduced evidence tending to show that Tyler paid the widow Houghan, since the date of the judgment, annually, the assessed annual value of $600, and that Walker repaid it from 1866 to 1874, inclusive, as paid by Tyler; that the payments thus made by the executor of Walker were made without any allowance in the Probate Court, and that Tyler was in possession when the dower suit was commenced. To all the evidence of plaintiff, defendants objected as incompetent and irrelevant.

Defendants, against the objection of plaintiff, gave evidence tending to show that the dower of Houghan was worth less than the amount recovered against Tyler; and also offered certain annuity tables, and a calculation of dower on a valuation of $5,000 for the lot.

It was admitted, on the trial, that the property did not increase in value whilst held by Deaver; that Walker, in 1835, removed the improvements and erected others much more valuable, and that Tyler put up additional improvements, which still remain on the...