Jones v. Whitsett

• Court: Missouri Supreme Court
• Writing for the Court: MARTIN
• Citation: Jones v. Whitsett, 79 Mo. 188 (Mo. 1883)
• Decision Date: 31 October 1883
• Parties: JONES v. WHITSETT, Appellant.

79 Mo. 188

JONES

v.WHITSETT, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Franklin Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

Crews & Booth for appellant.

A. A. Underwood for respondent.

MARTIN, C.

This action was commenced on the 21st day of November, 1879, for breach of covenant of warranty in a deed of conveyance. Before the end of the trial, the plaintiff discontinued his claim for damages on the covenant as to all the land described in the petition, except forty acres. The case was tried by a jury and resulted in a verdict and judgment for plaintiff in the sum of $131.50, from which the defendant appeals. The facts appearing in the evidence of this case would have been disclosed more satisfactorily if the law governing them had been more definitely declared and applied by the court as the case proceeded.

It appears from the evidence that on the 18th day of March, 1865, the plaintiff purchased a tract of 173 acres of land from defendant for $900, which included the forty acres involved in the judgment of this case. The deed contained the usual statutory covenants and a covenant of warranty. In March, 1870, Ann E. Miller and others brought an action of ejectment against the plaintiff upon a paramount title. Judgment in the circuit court went in favor of defendant there, from which an appeal was taken by the adverse party to the Supreme Court. There were other actions pending in the Supreme Court which involved the same issues. After the decision of one of them which was styled Miller v. Bledsoe, 61 Mo. 96, the merits of the case against Jones, the plaintiff herein, were regarded by the parties as practically determined in favor of the paramount title. Accordingly the case of Miller v. Jones was by stipulation of the parties reversed, and judgment was entered in the circuit court for recovery of 11-36 of the forty acres described in this case.

As to whether Mr. Whitsett had notice of the suit of Miller v. Jones and an opportunity to defend it, the testimony is apparently conflicting, but the evidence on the whole points but one way. The suit was defended by attorneys, who, in obedience to the ruling in Miller v. Bledsoe, signed the stipulation to reverse the judgment and enter up a judgment for plaintiff. Mr. Jones testified that although they acted in his name, he never employed them and never paid them. Mr. Whitsett disavows employing or paying them. Now, if this be true, then the attorneys must have occupied themselves in attending to a lawsuit in the circuit and Supreme Court about which the parties in interest were entirely indifferent. The same attorneys, or some of them, represent Mr. Whitsett in this case, and he admits that he had notice of the ejectment suit, but not a written notice, and that Jones looked to him on his warranty, as indicated in a conversation with him after the suit was brought. The evidence tends to show that Jones paid on execution for costs about $150 by himself and his garnishee. Immediately after the recovery on the paramount title, it was bought in by Mr. Whitsett, so that no actual ouster or dispossession of Jones was suffered by him or his grantees.

1. COVENANTS FOR TITLE: liability of covenantor.

It was contended by defendant that the plaintiff in this case was not in actual possession of the premises at the time the suit in ejectment was commenced, and that consequently the judgment would have been of no effect; and that no ouster could have taken place under it for which defendant was responsible on his covenant. If Mr. Whitsett defended the ejectment, this point would have no force. He certainly treated the action in the light of a hostile assertion of paramount title, and it was so treated by Jones and by the plaintiff in the action. After judgment Whitsett concedes this to be its legal effect, by purchasing the outstanding title and receiving a deed from the holders of it, which recites that it is “the same land recovered in ejectment suits by the grantors herein in their several suits against John Earley's heirs, James Jones and Joel McDaniels in the circuit court of Franklin county.”

Besides, the evidence of Jones not being in possession when the ejectment suit was brought, is by no means clear of doubt. It rather tends to show that he was in possession of at least a portion of the forty acre tract. The defendant in his answer avers that after the deed to the land was made, the plaintiff entered into possession, and that ever since, he and his grantees have been in possession of the same. The attorney who brought the ejectment suit, testifies that Jones was in possession when he sued, and that he sold to McDaniels pending the suit, and that McDaniels was sued in a distinct action for part of the forty acre tract. The plaintiff admits in the bill of exceptions that McDaniels, his grantee, was in possession when the Miller suit was brought, but says nothing about his own...