Matheny v. Mason

• Court: Missouri Supreme Court
• Writing for the Court: RAY
• Citation: Matheny v. Mason, 73 Mo. 677 (Mo. 1881)
• Decision Date: 30 April 1881
• Parties: MATHENY v. MASON, Appellant.

73 Mo. 677

MATHENY

v.MASON, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Cass Circuit Court.--HON. HOAH M. GIVAN, Judge.

REVERSED.

Gates & Wallace for appellant.

Robert Adams, Jr., for respondent.

RAY, J.

The petition alleges that plaintiff sold and delivered to defendant 1,123 bushels and thirty pounds of corn, at sixty cents per bushel; that defendant paid plaintiff thereon the sum of $10, leaving a balance of $664.10 due and unpaid, for which judgment is asked. The material part of the answer admits the purchase of the corn, at the price stated; the payment of the $10; but avers as a defense to the action, that upon the sale of said corn, the law implied a warranty of title, on the part of the plaintiff to the defendant, for said corn, and then charges that said corn, in fact, did not belong to the plaintiff; but was the property of Amos and Nathan Bailey; that at the time of the purchase he supposed the plaintiff was the owner of the corn, and did not learn that it belonged to the Baileys until after the sale and delivery thereof to the defendant; that the Baileys, after the sale and delivery, gave notice to defendant that the same belonged to them, and demanded that payment therefor should be made to them, and were threatening to sue defendant therefor; and the defendant thereupon, learning that the Baileys were the true owners of the corn, and that it did not belong to the plaintiff, paid the said Baileys the full value thereof, before the commencement of this suit; and the answer further charges that the plaintiff, at the time of said sale, was, and ever since has been, and still is insolvent. To this answer the plaintiff demurred, because it did not state facts sufficient to constitute a defense herein, and was insufficient in law; which demurrer the court sustained, and the defendant electing to abide by said answer, and declining to answer further, final judgment was given for the plaintiff, for the balance claimed in the petition. Whereupon the defendant filed his affidavit and bond, and brings the case here by appeal.

The only question in the case is the sufficiency of this answer. The court below, by sustaining the demurrer, held it insufficient. It must be confessed that there is great conflict of authority on this point. Many decisions have been made, in the courts of the different states, upon questions similar to that presented by this demurrer, and these decisions are by no means in harmony with each other; nor is it an easy matter to determine how the weight of authority is, upon the precise point presented by this answer and the demurrer thereto.

It will be observed that this is a case between the seller and purchaser of personal property; where the vendee, when sued for the purchase price, sets up by way of defense, that the seller had no title to the property sold, and was and is totally insolvent and unable to respond to a breach of warranty of title to said property if sued therefor; and that said purchaser, upon notice and claim of the true owner thereof, and his threat to sue therefor, has paid said claimant and owner the full value of said property. Numerous cases are cited by the briefs of counsel on each side. Some of them are cases like this; but many of them are cases between vendors and vendees of real estate, some of them between bankers and their depositors, and others between bailors and bailees, or common carriers and their employers or shippers. In all these cases the point in dispute was the want of title in the vendor, depositor, bailor, consignor or other claimant; but whether the like or a different rule is applicable to all these classes of cases, it is perhaps not necessary here to inquire or determine.

In this State the principle is well settled, that the purchaser of land, who has taken a conveyance with covenants of title, or a bond for such a conveyance, and is placed and continues in the undisturbed and undisputed possession thereof, will not be relieved against the payment of the purchase money on the mere ground of defect of title, there being no fraud or false representations as to the title and no eviction. In all such cases, he cannot resist the payment of the purchase money without offering to restore the possession thus acquired by him to the vendor. Mitchell v. McMullen, 59 Mo. 252; Harvey v. Morris, 63 Mo. 475; Wheeler v. Standley, 50 Mo. 509; Connor v. Eddy, 25 Mo. 72; Smith v. Busby, 15 Mo. 343. In all these cases, however, it is to be remarked that the parties attempting to set up this defense were in the undisturbed and undisputed possession of the real estate so bought, and that no person was disputing their title, except themselves, and that, for the purpose of getting rid of the payment of the purchase money. What difference, if any, would have been made, in such cases, if the true owner of the title to such property, had been asserting his title and claiming the possession thereof, and said purchaser had yielded to his claim, by purchasing his title, need not here be inquired or determined. No case in our court of the latter sort has been called to our attention in the brief of either counsel.

It is equally well settled in this State, that a purchaser, who has paid for land, may, where the paramount title is outstanding, maintain an action against his vendor for a breach of his covenant of warranty without an actual eviction. “That is, an actual dispossession, by process of law, consequent upon a judgment, is not necessary, in order that a covenantee may maintain an action for breach of the covenant of warranty.” “In all such cases, however, of voluntary dispossession or ouster in pais, where there has been no judgment, the burden of proof is upon the covenantee to establish the adverse paramount title to which he has yielded; and the possession should only be surrendered after claim or demand made therefor.” Morgan v. The Hannibal & St. Joseph R. R. Co., 63 Mo. 129, and cases cited. Whether such a party, in such case, who had given his note for the purchase money of such land, could in like manner successfully resist the payment of said note by assuming the like burden, when he has yielded to such adverse title without suit, by purchasing in the same, it may not be necessary here to consider or pass upon. Such also seems to be the law in other states, in like controversies between vendees and vendors of real estate. See 21 Wend. 131; 8 Barb. 1; 6 Gray 572; 4 Hill 643; 6 Barb. 165; 4 Mass. 349. It may be remarked, however, that the implied warranty of title, upon the sale of personal property has been held, by the authorities, to be analogous to a covenant for quiet enjoyment in the sale of lands; and it would seem, from these authorities, that the courts do not maintain a different rule in actions based on a breach of warranty of title, on the sale of personal property, than is adopted in a like action in the sale of real estate. See 62 N. Y. 331; 1 Lansing 145; 26 N. Y. 230; 40 N. Y....