Martin v. Long

• Court: Missouri Supreme Court
• Writing for the Court: M'GIRK
• Citation: Martin v. Long, 3 Mo. 391 (Mo. 1834)
• Decision Date: 30 June 1834
• Parties: MARTIN v. LONG, ADM'X OF LONG.

3 Mo. 391

MARTIN

v.LONG, ADM'X OF LONG.

Supreme Court of Missouri.

June Term, 1834.

ERROR FROM CIRCUIT COURT OF ST. LOUIS COUNTY.

M'GIRK, C. J.

Sarah Long, adm'x of B. Long, brought an action of covenant against Martin, for a breach of a covenant of seizin. Judgment by default was taken, and on the execution of the writ of inquiry, the defendant appeared and took a bill of exceptions. The plaintiff's declaration is in substance as follows: that on the 30th day of Dec., 1828, the said Martin by his deed poll, for and in consideration of the sum of $1,000 to him in hand paid by said B. Long, granted, bargained and sold, and conveyed unto the said Long a certain tract of land in the county of St. Louis (setting out the boundaries), containing 75 acres 32-100; also one other tract adjoining the before described tract, bounded as follows: beginning in the westwardly boundary of the before mentioned tract at a rock, &c., setting out the boundaries as before, containing 46 acres and 65-100, making in all 121 acres and 97-100, the last described tract being a part of the original survey of William Griffin. The lands by the said deed conveyed being three-sevenths of 328 arpents, which descended to the children of John Whitset and his wife Phebe, which said lands the said Martin purchased of Owen Wingfield, who married one of the heirs, and acquired the other two-thirds or shares by purchase from Mitchell Hatton and Isaac Voteau, who married two of the heirs of said Whiteside. And the said Martin in and by said deed covenanted with said Benj. Long that he was seized of a good and perfect title to said lands, and that he would warrant and forever defend the title to the same, &c. The declaration then avers for breach, &c., that Martin was not seized, &c. On the trial the defendant moved the court to instruct the jury, that the measure of damages was not the consideration money and interest, but only such damages as he proved he actually sustained, which the court refused to give; but instructed the jury that the measure of damages would be the consideration money and the interest thereon, which opinion and instruction were excepted to. The only question for us to consider is what shall be the measure of damages in such a case as this. It is admitted that such is the rule as above laid down by the court, where the party had at the time of making the deed, no estate in the land: but it is insisted by Mr. Gamble for the defendant, that by the declaration in this case, it appears the plaintiff only sold a life estate in the land, and that then the covenent of seizin is only a covenant of seizin of life estate. He then contends that although the default admits this covenant is broken, yet the plaintiff by his own declaration in setting out the deed, shows by the recitals in the deed that Martin has in fact a life estate in the land. We are clearly of opinion that Martin only sells a life estate, he uses no words of perpetuity, the word “heirs” is wanting.^a We are also satisfied that the covanant of seizin...