Jones v. Haseltine

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

102 S.W. 40

124 Mo.App. 674

JONES, Appellant, v. HASELTINE et al., Respondents

Court of Appeals of Missouri, St. Louis

April 30, 1907

Appeal from Greene Circuit Court.--Hon. Jas. T. Neville, Judge.

REVERSED AND REMANDED.

STATEMENT.--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 north half of the south half of southwest fractional quarter of section six, township twenty-nine range twenty-one, situated in Greene county, Missouri, to secure to Kincaid the payment of a promissory note for five hundred dollars, due three years after date. On November 24 1894, the deed of trust was foreclosed by sale made by the trustee, at which sale, Laura 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 one to fifty-two 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 eighteenth of March, 1888, plaintiff loaned Burgess one hundred and fifty dollars, 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 same 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 two hundred and twenty-five dollars at the time. On March 17, 1903, plaintiff in consideration of one hundred and fifty dollars, 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 one hundred and fifty dollars, and that plaintiff would make her quitclaim deed to the lot for one hundred and fifty dollars, 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 one hundred dollars of the one hundred and fifty 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 one hundred dollars out of the one hundred and fifty 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 seizin of an indefeasible estate in fee simple. The answer was a general denial and the plea of a five and ten-year Statute of Limitations. The court to whom the parties submitted the issues rendered judgment for defendants.

Judgment reversed and cause remanded.

McLain Jones and J. T. White for appellant.

(1) A covenantee may recover for a breach of a covenant of warranty without showing actual eviction; it is sufficient if he shows an assertion of a paramount title to which he has yielded either by surrendering possession or extinguishing the paramount title. Lambert v. Estes, 99 Mo. 608; Eagan v. Martin, 71 Mo.App. 65, 81 Mo.App. 676; Leet v. Gratz, 92 Mo.App. 431; Ward v. Ashbrook, 78 Mo. 517; Rawle on Covenants of Title (3 Ed.), pp. 280, 281, 283, 288, 289, 290 with notes on pages 281 to 283; Hall v. Bray, 51 Mo. 288; Morgan v. Railroad, 63 Mo. 129; Mumford v. Keet, 65 Mo.App. 502. (2) The Statute of Limitations does not run against an action on covenant of warranty until actual eviction or extinguishment of the paramount title; likewise the Statute of Limitations does not begin to run against an action on a covenant against in cumbrances until the encumbrance is extinguished or ouster suffered under it.

In this case plaintiff's cause of action did not accrue when he received his deed nor when the prior mortgage was foreclosed in 1894, but only when the paramount title of Nora C. McDaniel was asserted in 1903 and plaintiff paid his money to extinguish it. Wyatt v. Dunn, 93 Mo. 459; Hunt v. Marsh, 80 Mo. 396; Blondeau v. Sheridan, 81 Mo. 545; Walker v. Deaver, 79 Mo. 675; Priest v. Deaver, 22 Mo.App. 279; Taylor v. Priest, 21 Mo.App. 685; Buren v. Hubbell, 54 Mo.App. 617.

Wright Bros. & Blair for respondents.

(1) Plaintiff was required to show that Nora C. McDaniel's title was paramount. Hall v. Bray, 51 Mo. 292; Lambert v. Estes, 99 Mo. 608. (2) The legal title draws the possession to it. Sell v. McAnaw, 158 Mo. 471. (3) The recovery cannot exceed the consideration money and interest. Mumford v. Keet, 65 Mo.App. 506; Leet v. Gratz, 92 Mo.App. 431. (4) And it is the actual consideration that limits the damages, not that mentioned in the deed. 3 Washburn, Real Prop. (4 Ed.), p. 492; Pence v. Gabbert, 70 Mo.App. 209; Hall v. Bray, 51 Mo. 292. (5) Appellant failed to show any consideration for the deed of respondent to him. "This question went to the very heart of plaintiff's cause of action, because if he paid no consideration it stands to reason he had suffered no damage and was not entitled to recover what he had not paid." 3 Washburn on Real Prop. (4 Ed.), 492, 4 Kent, Com. (12 Ed.), Star page 475.

BLAND, P. J. Goode, J., not sitting. NORTONI, J., concurring.

OPINION

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 a 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 seizin, plaintiff was entitled to at least nominal damages. In Allen v. Kennedy, 91 Mo. 324, 2 S.W. 142, it is said:

"As the covenant of seizin 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 a covenantee takes an 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 seizin 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 seizin. In Dickson v. Desire's Adm., 23 Mo. 151, and Cockrell v. Proctor, supra., it was held that an eviction is not necessary to constitute a breach of the covenant of seizin, that it is sufficient if some damage result from an outstanding paramount title. The covenant of seizin, 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.

CONCUR BY: NORTONI

CONCURRING OPINION.

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 seized 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. [R. S. 1899, sec. 907.] 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...