Magwire v. Riggin

• Decision Date: 31 October 1869
• Citation: 44 Mo. 512
• Parties: JOHN MAGWIRE, Appellant, v. JOHN RIGGIN, Respondent.
• Court: Missouri Supreme Court

44 Mo. 512

JOHN MAGWIRE, Appellant,

v.JOHN RIGGIN, Respondent.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Harding & Crane, for appellant.

I. The covenant of indefeasible seizin, created by the statute, is a covenant for title, and runs with the land. (Dickson v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 174.)

II. The covenant sued upon being one which runs with the land, and not broken until after defendant's act and discharge in bankruptcy, that discharge does not release defendant from liability to plaintiff in this action. (French v. Morse, 2 Gray, 111; Bush v. Cooper, 26 Miss. 612; 5 U. S. Stat. at Large, 444; Bennett v. Bartlett, 6 Cush. 225; Rawle on Cov., 3d ed., 577.) Uncertain or contingent demands were provable under the act of 1841, but the claim of Magwire in this case is not such a demand; but, at the time of defendant's discharge in bankruptcy, it was a contingency whether there would ever be a demand. ( VideReed v. Pierce, 36 Maine, 460; Bush v. Cooper, 26 Miss. 612; Woodard v. Herbert, 24 Me. 358; Goodwin v. Stark, 15 N. H. 218; 3 Pars. Cont., 5th ed., 505, note f; James' Bankr. Law, 84-6; Bennett v. Bartlett, 6 Cush. 225; French v. Morse, 2 Gray, 111; 1 Smith's Lead. Cas., 6th ed., part 2, pp. 1135, 1137, 1139.) The discharge of the principal in a penal or official bond in bankruptcy is no bar for after breaches, because the pecuniary obligation imposed by these instruments depends on a contingency which can not be estimated. (Woodard v. Herbert, 24 Me. 358; Goodwin v. Stark, 15 N. H. 218; Dyer v. Cleveland, 18 Verm. 241; Ellis v. Ham, 28 Mo. 385; Goss v. Gibson, 8 Humph. 107; Loring v. Kendall, 1 Gray, 305; Dale v. Warner, 32 Mo. 94; French v. Morse, 2 Gray, 111, 113.) The case at bar is clearly distinguishable from the case of Shelton v. Pease, 10 Mo. 475. The latter is a case of a contingent demand.

Garesche & Mead, for respondent, relied on Shelton v. Pease, 10 Mo. 475.

BLISS, Judge, delivered the opinion of the court.

In 1839 the defendant conveyed certain lands to plaintiff's grantor by a deed containing the statutory words, “grant, bargain, and sell,” without being restrained by other express terms (Gen. Stat. 1865, ch. 109, § 8), and in 1843 obtained a certificate of discharge in bankruptcy, under the act of 1841. In 1868, one Margaret Thomas obtained a judgment in proceedings for the assignment of dower upon this land, her inchoate title having commenced anterior to that of defendant, as conveyed in his deed of 1839. This suit was instituted by the plaintiff upon the covenants of said deed to his grantor, and the defendant pleads his certificate of discharge in bankruptcy.

The words “grant, bargain, and sell” contain, by the statute, the express covenant of indefeasible seizin in fee simple of the land conveyed, and are a covenant that runs with the land, of indemnity, continuing to successive grantees, and inuring to the one upon whom the loss falls. (Dickson v. Desire's Adm'r, 23 Mo. 151.) No right of action arises upon this covenant until the assertion of the paramount title, and in the present case the plaintiff and his grantor enjoyed peaceable possession until the assertion by Margaret Thomas of her right of dower by her proceedings to enforce it, and for the purposes of this action the satisfaction of her judgment was equivalent to an eviction. This right to avail himself of defendant's covenant, having arisen so many years after his discharge from bankruptcy, he is met by the claim that this covenant is one of the “contingent demands” embraced in that discharge.

The language of the bankrupt act of 1841, in relation to the character of the indebtedness brought within its operation, is very broad. The fourth section provides that “a discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provable under this act, and shall and may be pleaded as a full and complete bar,” etc.; and section 5 provides that “all creditors whose debts are not due and payable until a future day, all annuitants, holders of bottomry and respondentia bonds, holders of policies of insurance, sureties, indosers, bail, or other persons having uncertain or contingent demands against such bankrupt shall be permitted to come in and prove such debts or claims under this act, and shall have a right, when their debts or claims become absolute, to have the same allowed them.” By these two provisions, all contingent demands that are provable under the act are entitled to a share of the bankrupt's effects, and are barred by his discharge. The demand of plaintiff's grantor at the time of the proceedings in bankruptcy were found upon Mrs. Thomas' inchoate right of dower in the premises granted, her husband being then living. This right is not an estate, but a mere contingent claim, not capable of sale on execution, nor the subject of grant or assignment. (Moore v. Mayor, etc., 8 N. Y. 110.) It may be divested without the consent of the widow by taking the land for public use. ( Id.) The dowress has a contingent possibility of interest in the premises which may be released, but no property, no actual interest, in it which is the subject of grant or assignment. Nor is the value of her possible or contingent interest capable of estimate with any degree of accuracy. (Weaver v. Gregg, 6 Ohio St. 547.) She may be divested of it by sale in partition. ( Id.) She may relinquish to the person holding the next estate, but can not sell and assign until dower is set off. (Miller's Adm'r v. Woodman, 14 Ohio, 518; Waller v. Mardus, 29 Mo. 25.)

Can a demand, founded upon the fear of the ripening and enforcement of such a shadow of a title, be presented to the bankrupt's assignee and liquidated by him? Is it one of those “uncertain and contingent demands” contemplated in the act? If so, a large portion of one's business transactions involves such demands. Every deed of conveyance in the ordinary form contains the covenant of indefeasible seizin; and who knows the encumbrances that, at some future day, may possibly be developed? One who had made numerous conveyances might find some difficulty in ascertaining the number of possible claims to be inventoried, the time they might possibly ripen, or the persons to whom they may possibly accrue. All these possible claimants should have their demands allowed, and distribution should be suspended until every possibility is excluded by time; and the time involved is well illustrated by the twenty-five years from discharge before the present claim...