Kellogg v. Malin

• Decision Date: 31 May 1876
• Citation: 62 Mo. 429
• Parties: JOHN S. KELLOGG, ETC., Respondent, v. JOSEPH MALIN, Appellant.
• Court: Missouri Supreme Court

62 Mo. 429

JOHN S. KELLOGG, ETC., Respondent,

v.JOSEPH MALIN, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Buchanan Circuit Court.

Doniphan & Reed, with A. H. Vories, for Appellant.

I. The measure of damages could be no more than a just compensation for continuance of incumbrance. (3 Cush., 206; 5 Wis., 22; 4 Kent, 476.)

II. An easement apparent to grantee is not embraced in a general covenant. (22 Wis., 628; 16 Ind., 142.)

III. If plaintiff was entitled to recover at all, the measure of damage would be only the consideration money and interest. (4 Dant, 475; 14 Pick., 128; 14 Conn., 245; 4 Johns., 1; 13 Id., 50; Caswell vs. Wardell, 4 Mass., 108; Martin vs. Long, 3 Mo., 391.)

IV. In this case the incumbrance was patent, and the land bought on speculation, and far below its value to the purchasers. In such case the purchaser is not entitled to recover. (3 Dess., 245; Waterman's Dart Vend. & Purch. Real Est., 376, and note.)

B. Pike & H. K. White, for Respondent.

I. If there was a misjoinder of parties, the objection was waived by answer. (Kellogg vs. Malin, 50 Mo., 496; Beddoe's Ex'r vs. Woodworth, 21 Wend., 120; Horstkotte vs. Menier, 50 Mo., 158; Shelton vs. Pease, 10 Mass. 473; Bredow vs. Mut. Sav. Ass'n, 28 Mo., 181.)

II. Defendant, Malin, was incompetent to testify as to the alleged settlement with Palmer and the original consideration. (Stanton vs. Ryan, 41 Mo., 511.)

III. The breach of the covenant was a chose in action belonging to the partnership, and as such collectable by the survivor. (Bredow vs. Mut. Sav. Inst., 28 Mo., 181.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff, Kellogg, for himself and as administrator of the effects of his former partner, Palmer, brought this action against the defendant for a breach of covenant against incumbrances. The breach consisted in the right of way, which was decreed by an order of court to the Platte County Railroad, previous to the sale, and for which the defendant received pay.

The answer admitted the execution and delivery of the deed, and the purchase of the land as partnership property, and the existence of the incumbrance. It alleged as defenses, that the grantees had only been partially excluded from the right of way vested in the railroad company, and that defendant and Palmer in his lifetime had compromised and settled the matter in dispute, and that the grantees had knowledge of the incumbrance when they bought. It further alleged, that Kellogg had made a final settlement of the administration of the partnership affairs. A replication was filed, denying all the new matter set up in the answer.

When the cause came on for trial the defendant objected to the introduction of any testimony by the plaintiffs, on the ground that the petition did not state a cause of action; that it showed that the land was conveyed to Kellogg & Palmer, then dead, and that the cause of action survived to Palmer's heirs, and not to the administrator; and that Kellogg could not bring the action in his own name, and also in his capacity as administrator. The court overruled the objection. This ruling, we think, was entirely correct. The covenant against a breach of encumbrances is a personal covenant, and may well be brought by the administrator. There is no insuperable difficulty presented in the joinder of the parties, but if the defendant thought there was a misjoinder, he should have raised the objection by demurrer; and, failing to do so, he must be regarded as having waived it.

Both parties introduced evidence in regard to the amount the plaintiffs were damaged by reason of the right of way, some of the plaintiff's witnesses placing the damages as high as one hundred dollars an acre; whilst some of the defendant's witnesses testified, that plaintiffs suffered no damages, but were benefitted by the road running through the land.

After this examination had progressed for some time, the court stopped it, and excluded all the evidence of this character, and announced that the measure of damages would be declared to be the value of the land taken at the time of the delivery of the deed from defendant to plaintiffs, and six per cent. interest thereon from that time.

Defendant read upon the trial the deposition of Alexander, certain portions of which were excluded, to which rulings exceptions were taken. One part of the deposition, which was ruled out, related to what Palmer said he was buying the and for, and stated that he could get accomodations from the road. This evidence was neither material nor legitimate. It made no difference about Palmer's motives in making the purchase; they constituted no element in the case. The other parts stricken out stated that the railroad was built in 1860, before plaintiffs purchased; that the construction of the road doubled the prices of land, and that in 1865, when the deed was made, the road was a benefit to the land; that, if the road was taken away, the land would not be worth as much by one-third, and that, at the time the purchase was made, plaintiffs were shipping their wood, and nobody could get accomodations on the road, except those connected with it. All this evidence was obviously irrelevant and properly rejected. The advantages and disadvantages spoken of were common to the whole country, and not peculiar to the land in controversy, and whatever favors the plaintiffs obtained from the road had nothing to do with the question.

Defendant further offered to prove by the deposition of one Nicely, that he had a conversation with Palmer, and that Palmer stated to him, that he and Kellogg purchased the land for the wood that was on it, and on account of facilities furnished by the railroad for getting it to the market. The court committed no error in ruling...