McGrew v. Elkins

• Decision Date: 23 February 1931
• Docket Number: No. 4849.,4849.
• Citation: 36 S.W.2d 424
• Parties: E.V. McGREW, RESPONDENT, v. TENNIE C. LANGDON ELKINS, APPELLANT.
• Court: Missouri Court of Appeals

36 S.W.2d 424

E.V. McGREW, RESPONDENT, v. TENNIE C. LANGDON ELKINS, APPELLANT.

No. 4849.

In the Springfield Court of Appeals. Missouri.

Opinion filed February 23, 1931.

Appeal from Dunklin County Circuit Court. — Hon. W.S.C. Walker, Judge.

REVERSED.

L.R. Jones for appellant.

(1) Assuming respondent had a cause of action under the evidence offered by respondent the same was barred by the 10 year Statute of Limitations. Falk v. Organ, 160 Mo. App. 218; Frank v. Organ, 167 Mo. App. 493; Adkins v. Tomlinson, 121 Mo., l.c. 495; Lead Co. v. White, 106 Mo. App. l.c. 231. (2) The Statute of Limitations, under the record of this case, began to run immediately upon the delivery of the deed from appellant to respondent. The Statute having once started continued to run, and respondent's cause of action, if any, was barred at the date of the institution of this suit more than 18 years after the delivery of the deed. Laster v. Land & Improvement Co., 213 S.W. l.c. 91; Meddis v. Wilson, 175 Mo. l.c. 133; Farris v. Coleman, 103 Mo., l.c. 366; De Hatre v. Edmunds, 200 Mo. 246, 98 S.W. 744, 10 L.R.A. (N.S.) 86; 17 R.C.L. 825-826-831-832.

John A. McAnally and Orville Zimmerman for respondent.

Plaintiff's cause of action was not barred by the 10 year Statute of Limitations. Until the suit brought by Charles D. Matthews against Anderson Karnes and John M. Karnes to determine title to the 60-acre tract of land had been determined, there had been no substantial breach of the covenant of warranty and the covenant of seizing and consequently, the statute had not begun to run. Wyatt v. Dunn, 93 Mo. 459, l.c. 463; White v. Stevens, 13 Mo. App. 240, l.c. 246; Jones v. Haseltine, 124 Mo. App. 674, l.c. 679; Leet v. Gratz, 124 Mo. App. 394, l.c. 405; Pineland Mfg. Co. v. Trust Co., 139 Mo. App. 209, l.c. 216; Steed v. Rassier, 157 Mo. App. 300, l.c. 307; 15 C.J. p. 1298, par. 187.

BAILEY, J.

This is a suit for breach of the covenants in a warranty deed executed and delivered by defendants to plaintiff on December 7, 1910, conveying certain lands in Dunklin County for an expressed consideration of $4000. The petition states that this deed contained in the granting clause the words, "Grant, Bargain and Sell," whereby defendant covenanted that at the time of the execution of said conveyance she was possessed of an indefeasible estate in fee simple in the real estate; that it was free of any incumbrances and for further assurance. It is further alleged that at said date defendant was not seized of an indefeasible estate in fee simple but that Charles D. Matthews, Jr., was then the owner; that on January 23, 1919, plaintiff conveyed these premises to A. Karnes, who subsequently conveyed same to John M. Karnes; that Charles D. Matthews instituted a suit in which A. Karnes, and afterward John M. Karnes, were defendants, for the purpose of recovering possession of said premises and a judgment was rendered in his favor; that defendant appealed to the Supreme Court of Missouri where the judgment for possession of the premises was affirmed, Matthews v. Karnes, 9 S.W. (2d) 628) and thereafter John M. Karnes was duly and legally dis-possessed; that plaintiff was compelled to settle with John M. Karnes, under his covenants of seizing and warranty, and made restitution so that plaintiff has become the damaged party; that the purchase price paid defendant for the premises was $1500, for which plaintiff prays judgment with interest thereon from December 7, 1910. The answer of defendant admitted the execution of the general warranty deed but pleaded that plaintiff's cause of action, if any, was barred by the ten year statute of limitations. Upon the issues thus drawn a trial was had to a jury, resulting in a verdict and judgment for plaintiff and defendant has duly appealed to this court.

Error is assigned in the refusal of the trial court to give defendant's Instruction No. 1, offered at the close of the testimony, directing a verdict for defendant. There is no dispute as to the facts, to which we will refer, briefly. The deed described in the petition, conveying 160 acres, was acknowledged December 28, 1910, and delivered to plaintiff the first of the year 1911; the land was wild, in the timber, unimproved, unfenced and was not in the actual occupancy of anybody except possibly a "squatter" on some portion of the land, who made no claim.

It is admitted that at the time plaintiff received his deed defendant was not in possession of the land and that plaintiff was never placed in possession thereof either by defendant or other person for her. It is further admitted that plaintiff never entered upon the land until a month or more after his deed was delivered, when he had men to start clearing the land and building fences. It appears that thereafter plaintiff and those claiming under him continued in possession and made valuable improvements, but their possession never ripened into a title through adverse possession (See Matthews v. Karnes, 9 S.W. (2d) 628).

The question presented is, where the grantor in a general warranty deed, containing the usual covenants of warranty and seizing, had no title to, or possession of the premises conveyed at the time the deed was executed and delivered, and where the grantee did not take possession at the time of such delivery of the deed, does the ten year statute of limitation commence to run immediately upon the delivery of the deed? It is plaintiff's contention the statute does not begin to run until there has been a substantial breach of the covenants of title, which in this case was on the date that the Matthew's suit, heretofore referred to, was finally determined. It has been repeatedly held under our statute (Sec. 1316 Revised Statutes 1919), that the statutory covenant of seizing, implied in the words "grant, bargain and sell," is a covenant running with the land and where possession accompanies the deed, given without title, the statute does not begin to run until there has been a substantial breach of covenant. [Dickson v. Desire's Admr., 25 Mo. 151; Chamblus v. Smith's Administrator, 23 Mo. 175; Leet v. Gratz, 124 Mo. App. 394, 101 S.W. 696; Falk v. Organ, 160 Mo. App. 218.]

In the latter case, wherein the facts were practically the same as in the case at bar, this court held:

"The law in this state is undoubtedly well settled that the covenant of seizin of an indefeasible estate in fee simple is a...