Jeffords v. Dreisbach

• Decision Date: 03 February 1913
• Citation: 153 S.W. 274
• Parties: JEFFORDS v. DREISBACH.
• Court: Missouri Court of Appeals

153 S.W. 274

JEFFORDS v. DREISBACH.

Springfield Court of Appeals. Missouri.

February 3, 1913.

1. TRIAL (§ 418)—WAIVER OF ERRORS—DEMURRER TO EVIDENCE.

A defendant waives his demurrer to the evidence by introducing his own evidence, instead of standing on the demurrer, unless he again presents it at the close of all the evidence.

2. DEEDS (§ 114)—COVENANTS OF WARRANTY —BREACH.

Where part of a lot as platted which was conveyed by number was owned and in the possession of an adjoining owner, the grantee was entitled to recover on the covenants of warranty, although her deed did not refer to the plat or to monuments or designate the quantity of land conveyed, since in the absence of monuments, where a lot is deeded by a certain number which number is one of a legally platted addition to a city, the grantee has a right to rely on getting the full amount of land called for in the recorded plat.

3. COVENANTS (§ 125)—DAMAGES—COVENANT OF SEISIN.

Where, at the time of a conveyance, part of the land conveyed is owned by and in possession of a third person, the measure of damages is the purchase price of such part with interest from the date of the deed, since the warranty of seisin is broken when the deed is made.

4. COVENANTS (§ 132)—DAMAGES—COSTS AND EXPENSES OF LITIGATION—NOTICE.

To hold a covenantor liable on his warranty for the costs and attorney's fees of litigation between the covenantee and a third person, he must be given not only plain and explicit notice of the alleged default in the title purported to be conveyed, but the notice must amount practically to an invitation or demand to assume control of the litigation.

5. COVENANTS (§ 132)—DAMAGES—COSTS AND EXPENSES OF LITIGATION—NOTICE.

Where a grantee's husband told the grantor on behalf of his wife that she expected the

grantor to defend the title, and that, if he did not do so, she would bring suit against a third person who claimed title, and was in possession, and the grantor said to go ahead and bring suit, there was sufficient notice of the third person's claim to hold the grantor liable on his covenant of warranty for the costs and attorney's fees of the litigation between the grantee and the third person.

6. WITNESSES (§ 56)—HUSBAND AND WIFE— AGENCY—ACTIONS FOR BREACH OF COVENANT.

In an action against a grantor on his covenant of warranty, wherein it was sought to recover the costs and attorney's fees of unsuccessful litigation against a third person, the grantee's husband could testify that at his wife's request and in her behalf he interviewed the grantor concerning the third person's claim, and told him that suit would be brought against the third person, unless he defended the title.

7. COVENANTS (§ 132)—DAMAGES—COSTS AND EXPENSES OF LITIGATION—NOTICE.

To enable a grantee to recover from her grantor the costs and attorney's fees of litigation with a third person concerning the title, notice to the grantor must have been given before the suit was instituted, or at least in time to have enabled him to protect himself if he so desired.

8. WITNESSES (§ 56)—HUSBAND AND WIFE— AGENCY.

That a husband was acting as agent for his wife may be established by his testimony.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Cora Mae Jeffords against Isaiah W. Dreisbach. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action for damages for an alleged breach of the covenants of warranty contained in a certain general warranty deed, whereby appellant conveyed to respondent, a married woman, lots 24, 25, and 26 in Chase & Slawson's addition to the city of Carthage, in Jasper county, Mo., for a consideration of $3,000. It is admitted that the plat book shows the lots in question to be 50 feet wide, east and west, and 178 feet long, north and south. The deed made no reference to the plat or map, designated no quantity of land contained in the lots, and made no mention of the width or depth of said lots, other than the description in the deed, which was as follows: "* * * The following described lots, tracts or parcels of land, lying, being and situate in the county of Jasper and state of Missouri, to wit: Lots 24, 25 and 26 in Chase & Slawson's addition to Carthage." There were no boundaries or monuments visible, and none were ever pointed out to the respondent before the deed passed. After she had purchased the lots, she found on a survey that a small strip on the west side of lot 24 was in the possession of one Willis Wallingford, the adjoining owner, which fact was unknown to her before she bought the lots. Litigation was instituted and prosecuted by her against Wallingford, which after three trials resulted in a judgment for Wallingford, adjudging the title in him of this small strip in question, which judgment was introduced in evidence in this case. From his own testimony in this case, it appears that defendant herein was a witness in the three trials between plaintiff and Wallingford Defendant's deed to plaintiff followed the same form as that whereby defendant acquired title to the lots, and there is no evidence of any fraud or misrepresentation made by the defendant to the plaintiff. The plaintiff seeks to recover from the defendant the value of the strip of land on the covenant of warranty contained in her deed, and for the costs, expenses, and attorney's fees paid out by her in the Wallingford suit. The answer of the defendant was a general denial. A jury being waived, the case was submitted to the court for trial, and judgment was rendered for plaintiff in the sum of $196.50. At the close of the plaintiff's case defendant tendered a demurrer to the evidence, which was overruled. No declarations of law were asked or given by the court.

George W. Crowder, of Carthage, for appellant. J. H. Bailey and W. E. Bailey, both of Carthage, for respondent.

FARRINGTON, J. (after stating the facts as above).

Error is assigned in the refusal of the trial court to sustain defendant's demurrer to the evidence. A sufficient answer is that defendant waived his demurrer by introducing his evidence, instead of standing on the demurrer or again presenting it at the close of all the evidence. Lohnes v. Baker, 156 Mo. App. 397, 137 S. W. 282; Tremain v. Dyott, 161 Mo. App. 217, 142 S. W. 760.

The important contentions made by appellant are: (1) That under the facts the plaintiff is not entitled to the finding of the court and the judgment rendered, for the reason there was no breach of the covenant of warranty. (2) That as to the attorney's fees and costs of the litigation growing out of the Wallingford case this defendant could not be held because of the failure of the plaintiff to give notice. And in this connection it is urged that the trial court committed error in allowing the plaintiff's husband to testify concerning a conversation he had with the defendant after plaintiff found that Wallingford was in possession of the strip off of lot 24.

The real contention to be decided is whether—in the absence of anything in the deed as to the quantity of land conveyed, and with no mention of any monuments, and there...