Leet v. Gratz

• Citation: 124 Mo. App. 394,101 S.W. 696
• Parties: LEET v. GRATZ.
• Decision Date: 16 April 1907
• Court: Court of Appeal of Missouri (US)

101 S.W. 696

124 Mo. A. 394

LEET v. GRATZ.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

1. LIMITATION OF ACTIONS—COVENANTS—SEISIN —BREACH—ACCRUAL OF ACTION.

A covenant of seisin implied from the use of the statutory words "grant, bargain and sell" in a deed, as provided by Rev. St. 1899, § 907 [Ann. St. 1906, p. 838], like a covenant of warranty, is a covenant of indemnity running with the land, so that an action for breach thereof so far as the recovery of substantial damages is concerned only accrues from the date of eviction because of a paramount title.

2. JUDGMENT — COVENANT OF SEISIN — SEPARATE EVICTIONS—BAR.

Plaintiff's predecessor in title purchased certain land in controversy from defendant by deed, containing a statutory covenant of seisin by the use of the words "grant, bargain and sell," as provided by Rev. St. 1899, § 907 [Ann. St. 1906, p. 838]. Thereafter judgment was recovered against plaintiff in ejectment, in which it was determined that the devisees of G. had superior title as against defendant. In order to preserve his possession, plaintiff then purchased the interest of certain of such devisees, who had attained majority, and brought an action against defendant on the covenant, and recovered the damages so sustained. On the other minor devisees subsequently becoming of age, plaintiff purchased their interest in the land, and brought a second suit against defendant for the value of such interest. Held, that each of such purchases constituted a separate eviction, for which plaintiff was entitled to recover damages, and hence the judgment in the first suit was no bar to the second.

3. SAME—SPLITTING CAUSES OF ACTION.

The rule that if a party have a cause of action which he may litigate and conclude in one suit, and separates the same and recovers a portion, the judgment concludes him as to the whole, applies only to the same cause of action, and concludes such rights only as were then before the court or capable of being presented and adjudicated between the parties.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Frank W. Leet against Anderson Gratz. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This is an action of covenant. We copy from the record the finding of facts and conclusions of law pronounced thereon by the trial court, from which a thorough understanding of the case in hand may be had:

"On the 3d day of October, 1890, the defendant, in consideration of the sum of $825 to him paid, conveyed, by general warranty deed, to Alice A. Harris, the real estate described in plaintiff's petition. By said deed, the defendant covenanted with the said Alice A. Harris, her heirs and assigns, that he was seised of an indefeasible estate in fee simple in the premises by said deed conveyed, and covenanted to warrant and defend the title to the said premises unto the said Alice A. Harris, her assigns and heirs forever, against the lawful claims and demands of all persons whomsoever; and the said Alice A. Harris, by her deed, dated the 13th day of February, 1891, did grant, bargain, and sell and convey the said premises to the plaintiff. The devisees of one Michael J. Gannon, Sr., on the 22d day of August, 1899, commenced suit in ejectment against the plaintiff in the circuit court of St. Louis county, Mo., returnable to the September term thereof, 1899, said cause being entitled Ed Gannon et al. v. F. W. Leet, to recover the possession of said premises and damages, and thereupon, on the 30th day of August, 1899, the plaintiff duly notified said defendant in writing of the commencement of said suit and demanded and required the said defendant to warrant and defend the title by him conveyed; that said defendant failed and neglected to defend said suit, and the plaintiff defended the same, and the court adjudged upon the trial thereof that the said defendant, at the date of his deed to the said Alice A. Harris, was not seised of an indefeasible estate in fee simple in said land; and that the said devisees of Michael J. Gannon, Sr., plaintiff in said ejectment suit, had title in fee simple thereto and were entitled to possession thereof. And in said ejectment suit a judgment was rendered against the plaintiff for the possession of all of said premises and for one cent damages for unlawfully withholding the same from the plaintiffs in said action of ejectment and devisees of said Michael J. Gannon, Sr. Thereafter and on the 31st day of August, 1900, to prevent being dispossessed and ejected from the said premises under and by virtue of said judgment, and from being deprived of the possession thereof, plaintiff purchased all the right, title, and interest of Lillie Gannon, Grace Allen, formerly Grace Gannon, John Allen, her husband, Eugenia Peterson, formerly Eugenia Gannon, and Gustav Peterson, her husband, in and to said premises; they being part of the plaintiffs in said action of ejectment, and devisees of said Michael J. Gannon, Sr. For their interest in said property, plaintiff paid to them the sum of $220, and thereupon they conveyed to plaintiff, by proper deeds of conveyance, all their right, title, and interest in and to said premises. Thereafter and on the 21st day of December, 1900, plaintiff commenced an action in the circuit court of St. Louis county, Mo., returnable to the January term thereof, 1901, against the defendant, Anderson Gratz, being an action for the breach of said covenants of seisin and warranty, to recover from him, as damages therefor, the said sum of $220, paid the said plaintiffs in said ejectment suit for their interests in said premises and for the expenses and attorney's fees paid by plaintiff in defending said action of ejectment. In the petition in said cause, it is alleged that the defendant, Anderson Gratz, at the date of the execution and delivery of his said deed to Alice A. Harris, was not seised of an indefeasible estate in fee simple in said premises in said deed described, but that, on the contrary, at said time, the devisees of said Michael J. Gannon, Sr., were seised in fee of said premises, and that the said devisees of said Michael J. Gannon, Sr., on the 22d day of August, 1899, commenced a suit in ejectment against this plaintiff in the circuit court of St. Louis county, Mo., to the September term thereof, 1899, said cause being entitled Ed Gannon et al. v. Frank W. Leet, and that on the 30th day of August, 1899, this plaintiff duly notified said defendant in writing of the commencement of said suit, and demanded and required said defendant to warrant and defend the title by him conveyed, and that said defendant failed and neglected to defend said suit, and this plaintiff did make defense thereto, and that the court adjudged upon the trial thereof that the said defendant at the date of his deed to the said Alice A. Harris had no title to said land, and that the said devisees of Michael J. Gannon, Sr., and plaintiffs in said action of ejectment, had title in fee simple thereto and that in said ejectment suit judgment was rendered against plaintiff for the possession of all said lands and for one cent damages for unlawfully withholding the same from the devisees of said Michael J. Gannon, Sr.

"In due course the defendant, Anderson Gratz, was duly summoned to answer to the petition of the plaintiff in said action so commenced by him as aforesaid, and in due time filed in said court his answer thereto, whereby he denied all the matters and facts in said petition stated. Upon the trial of said issues so joined before the said circuit court of St. Louis county, Mo., the matters and facts in said petition alleged were by the court adjudged to be true as in said petition of plaintiff in said action alleged, and it was adjudged by said court, upon a trial of said action, that the said plaintiffs in the said action of ejectment were the owners in fee simple of the said premises in plaintiff's petition described, and that the defendant had not an indefeasible estate in fee simple in the same at the date of his deed to the said Alice A. Harris; that this plaintiff had duly notified, in writing, the said defendant of the commencement of said action in ejectment as stated and demanded, and required him to defend the same; that the defendant neglected to defend the same; and that this plaintiff did defend said action of ejectment. It was further adjudged in said action that said defendant, by reason of the premises last aforesaid, was estopped and precluded from denying that the title of the plaintiffs in said action of ejectment was the superior and paramount title to said premises, but was held and conclusively bound by all the matters and facts adjudged in said action of ejectment. From said judgment so rendered, the said defendant prosecuted an appeal to the St. Louis Court of Appeals, where, after a full hearing of all the matters and facts in said action involved, the judgment of the circuit court of the county of St. Louis in said action was in all things affirmed.

"Subsequent to the commencement of said action against the defendant, and subsequent to the final judgment therein and its affirmance by the St. Louis Court of Appeals, plaintiff purchased from Ed Gannon and Catherine Gannon, other plaintiffs in said action of ejectment, all their right, title, and interest in the said premises in plaintiff's petition described—that is to say, from Ed Gannon an undivided one-sixth interest in said premises and from Catherine Gannon an undivided one-tenth interest therein, and paid to them therefor the sum of $160, that is to say, to Ed Gannon $100, and to Catherine Gannon $60—which price the court finds to be a reasonable price for their interests; and thereupon they conveyed to plaintiff all their right, title, and interest as aforesaid in and to said premises by proper deeds of conveyance. Subsequent to all said proceedings in the said prior case of Leet v. Gratz, and in...