Jackson v. Sewell

• Decision Date: 27 May 1926
• Docket Number: No. 4080.,4080.
• Parties: JACKSON v. SEWELL. et al.
• Court: Missouri Court of Appeals

284 S.W. 197

JACKSON v. SEWELL. et al.

No. 4080.

Springfield Court of Appeals. Missouri.

May 27, 1926.

Appeal from Circuit Court, Phelps County; W. E. Barton, Judge.

Action by Ollie M. Jackson against L. B. Sewell and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Watson & Shockley and W. D. Jones, all of Rolla, for appellants.

Holmes & Holmes, of Rolla, for respondent.

BAILEY, J.

This is an action brought by the grantee in a warranty deed against the grantors, for damages arising from an alleged breach of covenant against incumbrances. On trial to a jury, verdict and judgment was for plaintiff in the sum of $500, from which defendants appeal.

The petition states that on the 20th day of May .1925, defendants, for a valuable consideration, executed and delivered to her a general warranty deed to a certain 160 acres of land therein described; that said deed contained the usual covenants implied by the words "grant, bargain, and sell," and a special covenant against incumbrances; that at the time of the execution of said deed said premises were not free and clear of incumbrances, but, as therein stated, "were subject to certain rights and privileges of one Jesse Hollingsworth, who was then and is now in the possession of said premises, claiming rights and interests therein under a lease or other agreement with the defendants herein"; that said tenant withheld possession of said premises from plaintiff to her damage in the sum of $1,500.

The answer admits execution and delivery of the deed, but alleges that possession was delivered to plaintiff. The answer further admits Hollingsworth was in possession of the premises as tenant of defendants, but states that, "at the time of the execution and delivery of said conveyance, it was mutually agreed and understood between the defendants and plaintiff and the said Jesse Hollingsworth that the said Jesse Hollingsworth was to become and be the tenant of the plaintiff under the same terms and conditions as he was the tenant of defendants"; that Hollingsworth, in pursuant of said agreement, did become plaintiff's tenant, and by reason thereof plaintiff has had possession since the conveyance was made.

There was evidence to sustain both parties on the issues thus raised. Since the only error assigned relates to the giving of instruction No. 2 for plaintiff, it would be useless to even briefly set forth the facts as revealed by the record. On the part of plaintiff, the court gave two instructions, as follows:

"No. 1. The court instructs the jury that, if you believe and find from the evidence that on the 30th day of May, 1925, the defendants sold and conveyed to the plaintiff the tract of land mentioned and described in the deed introduced in evidence, dated the 30th day of May, 1925, executed by the defendants L. B. Sewell and Augusta Sewell, in favor of the plaintiff, Ollie M. Jackson, and that said deed contained covenants of warranty and covenants that said premises were free and clear of any incumbrances done or suffered by said defendants, and, if you further find and believe from the evidence that at the time of execution of said deed said premises were not free and clear of incumbrances as warranted, but were subject to a lease to one Jesse Hollingsworth, which does not expire until the 1st day of March 1926, and that said Jesse Hollingsworth had possession of said premises at said time and now has possession thereof, to the exclusion of the plaintiff, and that she has not been able to take, use, or occupy said land, you will find the issues in favor of the plaintiff, and assess her damages at such sum as you may think will compensate her for the loss sustained, not to exceed the sum of fifteen hundred dollars.

"No. 2. You are further instructed that, if you find the issues for the plaintiff, her damages should be the value of the use, occupancy, and enjoyment of said land from the 30th day of May, 1925, until the 1st day of March, 1926" (Italics ours.)

Defendants base their objection to plaintiff's instruction No. 2 on the proposition that by incorporating the words "occupancy" and "enjoyment" the instruction became broader than the petition and submitted to the jury an improper measure of damages. It is urged that this...