Matheny v. Stewart

• Decision Date: 22 December 1891
• Citation: 17 S.W. 1014,108 Mo. 73
• Parties: MATHENY et al. v. STEWART.
• Court: Missouri Supreme Court

17 S.W. 1014

108 Mo. 73

MATHENY et al. v. STEWART.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

COVENANTS OF WARRANTY — MEASURE OF DAMAGES — LEX LOCI — ELECTION UNDER WILL.

1. The measure of damages in an action upon a covenant of warranty in a deed is the purchase money paid, with interest and the legal costs and expenses reasonably and in good faith incurred in the assertion or defense of the title warranted.

2. The construction placed on covenants of warranty of title to real estate by the law of Mississippi, by which attorney's fees for defending the title are not allowed as damages for a breach, applies in an action in another state for breach of such a covenant in a deed conveying lands situated in Mississippi and executed in that state.

3. Expense incurred by a grantee in defending a title is not justified where it is plain that defense is useless, and after notice not to defend by the immediate grantor, who acknowledges liability on his covenants, and cannot be recovered by the evicted grantee in an action against a remote grantor upon a covenant of warranty.

4. In an action for breach of a covenant of warranty in a deed of land, brought by remote grantees against the personal representative of the deceased grantor, by whose will the land was devised, the doctrine of election cannot be applied to the rights of the devisees for the purpose of increasing the damages to the value of the property at the time of eviction, or even to the value of legacies bequeathed by the will to such devisees, they not being parties to the action.

Appeal from St. Louis circuit court; L. B. VALIANT, Judge.

Action by J. M. Matheny and another against R. B. Stewart, administrator of Mary M. Stewart with the will annexed, upon a covenant of warranty in a deed. Plaintiffs appeal. Affirmed.

Clifton & Eckford, for appellants. Frank M. Estes, for respondent.

MACFARLANE, J.

This is an action to recover damages for breach of the covenants of warranty contained in a deed made by defendant's testator to a remote grantor of plaintiffs. The facts, as gathered from the abstract of record, are in substance these: About the year 1840 one Atkinson Stewart conveyed certain lots in Aberdeen, in the state of Mississippi, to trustees for the use of his wife, Mary M. Stewart, during her life, and after her death to the use and benefit of the children of the grantor. In 1854, Mary M. Stewart conveyed the lots, for the expressed consideration of $114.25, to one John D. Robinson, by deed, in which she covenanted to warrant and defend the title. Robinson, the grantee, took possession of the property at once, and made valuable and lasting improvements thereon, and afterwards used the same as a place of business. Robinson conveyed to R. A. Honea & Co., and they conveyed to plaintiff. The dates and character of these deeds are not given in the abstract. Mrs. Stewart died in January, 1887, and left a will under which she devised this lot to defendant and others, who were the children of her grantor, and to certain of his grandchildren, and directed that the lots be recovered by the devisees, but made no provision for the protection of her covenantee. She also devised to defendant and another son certain notes she held against them, which appear to have been accepted by them. These devisees were the only children of Atkinson Stewart who survived the testatrix. Defendant, R. B. Stewart, is sued as the administrator with the will annexed of Mrs. Stewart. In 1887, R. B. and T. W. Stewart, claiming as remaindermen, commenced suit against plaintiffs for the possession of the lots, and for damages for their detention, and on February 11, 1889, obtained a judgment for the possession, and for $641.48 rents and $150.50 court costs. In the defense of this suit defendant incurred a liability for a large amount for attorney's fees and expense not included in the judgment. Plaintiff Matheny transferred the "equitable interest" in his claim for damages to one Mrs. Junkins, who is joined with him as plaintiff. The damages claimed by plaintiffs for breach of the covenants of warranty are the value of the lot and improvements at the time of eviction, $3,000; court costs in defense of title, $150.50; attorney's fees and necessary expense in defense of suit, $850. It also appears that Honea & Co., plaintiffs' immediate grantors, at the commencement of the ejectment suit in Mississippi notified them not to defend, and acknowledged their liability as warrantors, and admitting that they themselves were liable for breach of their warranty to plaintiffs, but denying liability for costs and expenses if the suit was continued. The answer put in issue the allegations of the petition. The court declared the law to be that the measure of damages was the purchase price, with interest, and refused to declare, as requested by plaintiffs, that they were entitled to recover, under the facts in this case, the value of the property at the time of eviction, and the costs and necessary expense of defending the ejectment suit. The judgment was for plaintiffs for the purchase price of the land and interest thereon from date of eviction, from which plaintiffs appealed.

We are called upon by plaintiffs in this case, in a very able brief and earnest argument by their counsel,...