Leet v. Gratz

• Decision Date: 16 April 1907
• Parties: LEET, Appellant, v. GRATZ, respondent
• Court: Missouri Court of Appeals

101 S.W. 696

124 Mo.App. 394

LEET, Appellant, v. GRATZ, respondent

Court of Appeals of Missouri, St. Louis

April 16, 1907

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

REVERSED AND REMANDED.

STATEMENT.--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 third day of October, 1890, the defendant, in consideration of the sum of eight hundred and twenty-five dollars (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 seized of an indefeasible estate in fee simple in the premises by said deed conveyed and covenanted to warrant and defend the title of the said premises unto said Alice A. Harris, her assigns and heirs forever, against the lawful claims and demands of all persons whomever; and the said Alice A. Harris, by her deed, dated on 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 22nd day of August, 1899, commenced suit in ejectment against the plaintiff in the circuit court of St. Louis county, Missouri 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 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 seized 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 two hundred and twenty dollars ($ 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 action in the circuit court of St. Louis county, Missouri, returnable to the January term thereof, 1901, against the defendant Anderson Gratz, being an action for the breach of said covenants of seizin and warranty, to recover from him, as damages therefor, the said sum of two hundred and twenty dollars ($ 220), paid the said plaintiff in said ejectment suit for their interests in said premises and for the expenses and attorneys' fees paid by plaintiff in defending said action of ejectment. In the petition of 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 seized 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 seized in fee of said premises and that the said devisees of said Michael J. Gannon, Sr., on the 22nd day of August, 1899 commenced a suit in ejectment against this plaintiff in the circuit court of St. Louis county, Missouri, 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 circuit court of St. Louis county, Missouri, 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 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, and 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 interests in the said premises in plaintiff's petition described; that is to say, from Ed Gannon an undivided one-sixth (1-6) interest in said premises and from Catherine Gannon an undivided one-tenth (1-10) interest therein, and paid to them therefor the sum of one hundred and sixty dollars ($ 160), that is to say, to Ed Gannon one hundred dollars ($ 100) and to Catherine Gannon sixty dollars ($ 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 acquiring the interest of the said Ed Gannon and Catherine Gannon as aforesaid in said property, and in perfecting his title thereto, the plaintiff was compelled to expend and did expend for various necessary expenses and reasonable attorney's fees in corresponding and negotiating with said Ed and Catherine Gannon, and in preparing and procuring deeds from them to plaintiff, the sum of one hundred and sixty-four dollars ($ 164) and which said expenses and attorney's fee the court finds to be reasonable.

"And the court further finds that this cause of action is upon the same covenants of seizin and warranty and for the same breaches of said covenants as said former action in favor of the plaintiff against the defendant, commenced on the 21st day of December, 1900, in which said plaintiff recovered judgment for damages as aforesaid; that said damages so recovered were all the damages that plaintiff had sustained by the said breaches of covenants at the time of said judgment for damages; and that the above-mentioned expenses of $ 160 and $ 164 were additional damages sustained by plaintiff by reason of the same breaches of covenants, after the time of sand judgment for damages and after the said affirmance of the same by the St. Louis Court of Appeals.

"Upon the foregoing facts, the court further finds, as matter and conclusion of law, as follows:

"(1) It is conclusively adjudged and determined in and by said former suit on said covenants, that said covenants had been broken by defendant, and that the plaintiff was entitled to recover his damages sustained by reason of the breaches thereof.

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