Jones v. Haseltine

• Decision Date: 30 April 1907
• Parties: JONES v. HASELTINE et al.
• Court: Missouri Court of Appeals

102 S.W. 40

124 Mo. A. 674

JONES v. HASELTINE et al.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

1. COVENANTS — ACTIONS FOR BREACH — DAMAGES — COVENANT OF SEISIN.

Where plaintiff receives a deed from defendant which imports a consideration, and there is a breach of a covenant of seisin, plaintiff is entitled to at least nominal damages.

2. SAME — LIMITATIONS — TIME OF BREACH.

Where the legal title to land was in a trustee at the time defendants made a deed, the covenant of seisin was broken at the moment of the execution and delivery thereof.

3. SAME — WHAT CONSTITUTES BREACH — NECESSITY OF EVICTION.

Damage resulting from an outstanding title is sufficient without eviction to constitute a breach of a covenant of seisin.

4. LIMITATION OF ACTIONS — COVENANT OF SEISIN — BREACH — ACCRUAL OF CAUSE.

The statute of limitations does not begin to run on a covenant of seisin until the covenantee suffers actual loss.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by McLain Jones against S. A. Haseltine and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

On February 10, 1888, S. A. and S. C. Haseltine and their wives, by their deed of trust, conveyed to B. R. Brewer, trustee for John Kincaid, the N.½ of the S.½ of the S. W. fractional ¼ of section 6, township 29, range 21, situated in Greene county, Mo., to secure to Kincaid the payment of a promissory note for $500, due three years after date. On November 24, 1894, the deed of trust was foreclosed by sale made by the trustee, at which sale Nora C. McDaniel was the purchaser. She received a deed from the trustee conveying the land to her. These deeds were duly recorded. On March 12, 1888, S. A., S. C. and S. I. Haseltine and their wives subdivided the aforesaid parcel of land into town lots, and made a plat thereof which they duly executed and filed in the recorder's office of Greene county, designating the plat as "Haseltine's Boulevard addition to the city of Springfield." The lots on the plat were numbered from 1 to 52, inclusive. About March, 1888, the Haseltines executed to one Burgess a bond, presumably binding themselves to convey to Burgess lot No. 49, in the Haseltine addition. On the 18th of March, 1888, plaintiff loaned Burgess $150, for which he took his note and an assignment of the Haseltine bond as collateral security for the note. On July 1, 1892, the Haseltines and their wives executed and delivered to plaintiff a general warranty deed, containing the words, "grant, bargain, and sell," conveying to him lot No. 49 of the Haseltine addition in the city of Springfield. Plaintiff testified that he did not pay the Haseltines any money for the lot; that the deed was made to take up Burgess' indebtedness to him, and he supposed he turned the Burgess bond and note over at the time he got the deed, but did not remember whether he turned them over to the Haseltines or to Burgess; did not know how the Haseltines and Burgess settled, and did not know that the bond was a bond to convey the lot, knew it had something to do with the lot; that the Haseltines made him the deed to extinguish Burgess' indebtedness on the note, which amounted to the sum of $225 at the time. On March 17, 1903, plaintiff, in consideration of $150, executed and delivered to Nora C. McDaniel a quitclaim deed, conveying to her all his right, title, and interest in the lot. This transaction was brought about in the following manner: Nora C. McDaniel claimed to own an undivided two-thirds interest in the lot. Plaintiff claimed he owned the whole of the lot. They agreed that the value of the lot was $150, and that plaintiff would make her a quitclaim deed to the lot for $150, with this understanding: That Messrs. Tatlow and Massey should pass upon the title and both parties would abide their decision, and, if it was found by them that Mrs. McDaniel owned an undivided two-thirds interest in the lot, plaintiff would refund her $100 of the $150 paid. Messrs. Tatlow and Massey made an examination and found that Mrs. McDaniel owned an undivided two-thirds interest in the lot, whereupon plaintiff refunded to her $100 out of the $150 paid to him by her. There was no evidence that Burgess paid defendants anything on the lot. The lot is vacant property and plaintiff was never in actual possession, though he paid taxes on it; nor does the evidence show Mrs. McDaniel was ever in possession. The action was for a breach of the covenant of seisin of an indefeasible estate in fee simple. The answer was a general denial and the plea of the five and ten year statutes of limitations. The court to whom the parties submitted the issues rendered judgment for defendants.

J. T. White and McLain Jones, for appellant. Wright Bros. & Blair, for respondents.

BLAND, P. J. (after stating the facts).

There is no direct evidence that defendants received any consideration for the lot from either Burgess or plaintiff. Only a conjecture can be formed from plaintiff's evidence that defendants made the deed in consideration of a surrender to them of the Burgess bond and the cancellation of his note. But the deed imports a consideration; and, if there was a breach of the covenant of seisin, plaintiff was entitled to at least nominal damages. In Allen v. Kennedy, 91 Mo., loc. cit. 329, 2 S. W. 143, it is said: "As to the covenant of seisin of an indefeasible estate in fee simple, the claim is that this covenant, if broken at all, is always broken when made, and does not run with the land. Whatever may be the rule elsewhere, with us it is more than a covenant in the present tense. It is rather a covenant of indemnity, and it has often been held that it runs with the land to the extent that, if the covenantee takes any estate, however defeasible, or if possession accompanies the deed, though no title pass, yet, in either event, this covenant runs with the land and inures to the subsequent grantee, upon whom the loss falls." The legal title to an undivided interest in the land was in the trustee, Brewer, at the time defendants made the deed to plaintiff, and hence the covenant of seisin was broken at the moment of the execution and delivery of the deed. Cockrell v. Proctor, 65 Mo. 41. Defendants contend that an eviction was essential to entitle plaintiff to sue for a breach of the covenant of seisin. In Dickson v. Desire's Adm'r, 23 Mo. 151, 66 Am. Dec. 661, and Cockrell v. Proctor, supra, it was held that an eviction is not necessary to constitute a breach of the covenant of seisin; that it is sufficient if some damage result from an outstanding paramount title. The covenant of seisin being a continuing one running with the land, the statute of limitations did not run in favor of defendants as covenantors until plaintiff, the covenantee, suffered actual loss. Walker v. Deaver, 79 Mo. 664; Priest v. Deaver, 22 Mo. App. 276.

In any view of the case, we think plaintiff is entitled to recover at least nominal damages, and reverse the judgment and remand the cause.

GOODE, J., not sitting.

NORTONI, J.

I concur with Judge BLAND in reversing the judgment and remanding the cause, but do not concur entirely in the view of the case indicated by him in the opinion given, and therefore deem it proper to communicate my own views separately.

It appears that defendants executed and delivered the deed to plaintiff which contained the statutory words, "grant, bargain and sell," from the employment of which there is implied a covenant, so far as this case is concerned, first, that the defendant grantors were then seised of an indefeasible estate in fee simple in the lot mentioned; and, second, that the lot was then free from incumbrances done or suffered by defendants or any person under whom they claimed. Section 907, Rev. St. 1899 [Ann. St. 1906, p. 838]. Now, it appears that at the time it was executed and delivered there was then outstanding and on record against a two-thirds interest in the lot a deed of trust, by virtue of which the legal title to a two-thirds interest in the lot had theretofore been conveyed and was then vested in Brewer, the trustee, to the use of Kincaid, with an equity of redemption only remaining in these defendants, the grantors, and this equity of redemption is all that passed to the plaintiff by the deed with respect to the two-thirds interest mentioned, whereas the covenant assured him an indefeasible estate therein. Now, upon this state of facts, the covenant, on the doctrine of its being a covenant in præsenti, was breached eo instanti upon the delivery of the deed to the plaintiff. Dickson v. Desire, 23 Mo. 151, 66 Am. Dec. 661. And his right of action for a technical breach and nominal recovery then accrued, provided he had paid some consideration; for, if he had paid no consideration, he suffered no damages, and was therefore entitled to no recovery. The damages never exceed the consideration paid. Lambert v. Estes, 99 Mo. 604-608, 13 S. W. 284; 3 Washburn on Real Property (6th Ed.) § 2410. The covenant of seisin, however, with us in Missouri, is more than a covenant in the present tense. It is rather a covenant of indemnity running with the land and inuring to the subsequent grantees upon whom the loss may finally fall. Dickson v. Desire, 23 Mo. 151, 66 Am. Dec. 661; Chambers v. Smith, 23 Mo. 174; Allen v. Kennedy, 91 Mo. 324, 2 S. W. 142. And, upon the principle that the covenant is one of indemnity running with the land to subsequent grantees, our courts pass over the technical breach operated upon the delivery of the deed, and adhere to the doctrine that the cause of action for a substantial recovery accrues so as to initiate the operation of the statute of limitations, looking to its ultimate bar upon the accrual of the right of substantial rather than the right of nominal recovery. Chambers v. Smith, 23 Mo. 174; Leet v. Gratz (decided at this term of court, but not yet officially reported) 101 S. W. 696.

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