Lasswell Land & Lumber Co. v. Langdon

• Decision Date: 25 June 1918
• Docket Number: No. 2270.,2270.
• Citation: 204 S.W. 812
• Parties: LASSWELL LAND & LUMBER CO. v. LANGDON.
• Court: Missouri Court of Appeals

204 S.W. 812

LASSWELL LAND & LUMBER CO. v. LANGDON.

No. 2270.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Suit by Lasswell Land & Lumber Company, a corporation, against Grace Langdon. From a judgment for plaintiff, defendant appeals. Affirmed.

L. R. Jones, of Kennett, for appellant. Fred L. Byrkit, of Kennett, for respondent.

STURGIS, P. J.

This is a suit for breach of the covenants contained in an ordinary warranty deed, using the words "grant, bargain and sell." The defendant sold plaintiff 40 acres of land, conveying same by warranty deed. At the time of such sale the greater part of such land was not inclosed or under cultivation, but a man named Gibson lived thereon, had some 5 or 6 acres inclosed and in cultivation, and was claiming title. He refused to give plaintiff possession. Plaintiff demanded of defendant that she put it in possession and dispossess Gibson, but she did not do so. Plaintiff then brought suit in ejectment and demanded that defendant take charge of the prosecution of the suit. The defendant declined to do this also. Plaintiff then prosecuted the suit to success and ousted Gibson. Gibson is denominated a squatter, and proved to have no title. He was in possession, however, was claiming title, and it took a suit at law to give plaintiff possession. The plaintiff sues for the necessary expenses paid out by it in prosecuting the ejectment suit, consisting of the court costs and attorney's fees. Plaintiff recovered in the trial court and defendant appeals.

The chief error assigned for reversal is that plaintiff bases its suit on a breach of the covenant of seisin, and the damages claimed can only be recovered for breach of the covenant against incumbrances. We think it is a narrow construction of the petition to say that it counts solely on a breach of the covenants of seisin. The petition recites a sale of the land and a making of the deed conveying same by the words "grant, bargain and sell," which import a covenant against incumbrances as well as of seisin. The facts constituting the breach are then set out, inclusive of payment by plaintiff of court costs and attorney's fees in the ejectment suit, and concludes with a prayer for such items of damage. The suit is therefore for breach of the covenants contained in the deed rather than for breach of the single covenant of seisin. [2] We also think that the necessary expenditures in prosecuting the ejectment suit may be recovered in a suit based on a breach of the covenant of seisin. The fact of this land being in the adverse possession of a third party, claiming title thereto at the time the deed was made, constitutes a breach of the covenant of seisin rather than that against incumbrances. The adverse possession of a third party who is asserting title is in no way an incumbrance on the land or title thereto, but same is a violation of grantor's seisin. The term "seisin" embraces both possession and title, and he who does not have both of these is not seised of the land. "This, as we have said, is an action by plaintiff [covenantee] against the defendants [covenantors] for the breach of a covenant of seisin. Seisin is of two kinds * * * seisin in law, and seisin in deed. A covenant of seisin implies that the covenantor is possessed of both, that is, of the whole legal title, and the covenant is broken once and for all if the covenantor has not the possession, the right of possession, and the right of legal title." Falk v. Organ, 160 Mo. App. 218, 224, 141 S. W. 1. See 7 R. C. L. 1130, § 45. It is said in 11 Cyc. 1108, that:

"A possession adverse to the grantor at the time of his conveyance is, independently of champerty and maintenance, a breach of his covenant of seisin, no matter how good his right and title."

Adverse possession by a third party is quite different from an easement in the land, and distinguishes this case from Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426. The case of Evans v. Fulton, 134 Mo. 653, 36 S. W. 230, was a suit for the breach of a covenant of seisin, in that the land was in the adverse possession of a third party at the time of the conveyance, and tthe plaintiff's right to recovery was sustained. While the rule is often announced that the damages to be recovered for breach of the covenant of seisin in case of failure of title is limited to (that is, cannot exceed in amount) the purchase price with interest (Walker v. Deaver, 79 Mo. 664, 676; Falk v. Organ, supra; Coleman v. Lucksinger, 224 Mo. 1, 17, 123 S. W. 441, 26 L. R. A. [N. S.] 934), it by no means follows that items of costs and attorney's fees may not enter into the recovery. The case of Coleman v. Clark, 80 Mo. App. 339, is a case on all fours with this one. The court there held that it was a breach of the covenant of seisin that the land was in the possession of a third party; that, where the grantee was compelled to bring suit to obtain the possession, the expenses incurred in the prosecution of that suit, inclusive of "attorney's fees, are recoverable as damages for the breach of the covenant of seisin. The court there said:

"As between the vendor and the vendee, the latter has a right to the property which he has purchased, and it was the duty of Clark [vendor] under his covenant of seisin to put Coleman [vendee] in the actual possession of all the lands described in his deed. This he did not do, and Coleman, to obtain what he had bought from Clark and paid for, was forced to bring the ejectment suit against Drane. This suit against Drane was occasioned by, and resulted from, the breach of appellant's covenant of seisin, and the expenses incurred in the prosecution of that suit are the proximate damages sustained by the respondent on account of such breach, as much as if Coleman under different circumstances had been compelled to pay out money to obtain title and possession from one holding under a title superior to...