Joyce v. Murnaghan

• Decision Date: 17 March 1885
• Parties: KATE L. JOYCE, Guardian, Appellant, v. GEORGE MURNAGHAN, Respondent.
• Court: Missouri Court of Appeals

17 Mo.App. 11

KATE L. JOYCE, Guardian, Appellant,

v.GEORGE MURNAGHAN, Respondent.

ST. Louis Court of Appeals, Missouri.

Mar. 17, 1885.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

FRANKLIN FERRISS, for the appellant.

JAMES P. MAGINN, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is an action for damages for breach of a covenant of warranty. One of the defenses was an equitable defense. The cause was heard by the court without a jury. The court gave judgment for the plaintiff for nominal damages--one dollar and costs. The substantial grounds of the action were, that on April 25, 1874, the defendant conveyed by warranty deed an undivided one-half of a parcel of ground to his brother, Daniel Murnaghan, the father of the minor wards of the plaintiff, and that, at the time of this conveyance there was outstanding upon the property a deed of trust which had been executed by the defendant to secure an indebtedness of his in the sum of $3,000. Then there are allegations in the petition as to the damages, and judgment is asked in the sum of $2,300. The principal defense was an equitable defense, the substance of which was, that the land of which the warranty deed in question conveyed to Daniel Murnaghan an undivided one-half, was real estate which belonged to Daniel Murnaghan and the defendant as partners; that the purpose of the conveyance was merely to declare the interest of Daniel in such land as tenant in common with the defendant; that it was intended to do this by a quit-claim deed, and that the covenant of warranty, which is the basis of this action, was inserted in the deed by the mutual mistake of Daniel and this defendant.

There was considerable evidence tending to make out this equitable defense; and I am prepared to say for myself, without speaking for other members of the court, that if we had power to deal with this defense as chancellors, I should say that it had been established and consequently that the deed ought to be read as though it contained no covenant of warranty; from which it would follow that the plaintiff is not entitled to maintain this action. But it must be remembered that this action is an action at law, and although one of the defenses was an equitable defense, yet the question whether it is to be regarded as an action at law or as a suit in equity, is determined by the character of the action, and not by the character of the defense.-- Smith v. St. Louis Beef Canning Co., 14 Mo. App. 522. The learned judge of the circuit court, therefore, tried the...