Miller v. Bayless

• Decision Date: 06 March 1906
• Citation: 92 S.W. 482,194 Mo. 630
• Parties: MILLER v. BAYLESS et al.
• Court: Missouri Supreme Court

92 S.W. 482

194 Mo. 630

MILLER v. BAYLESS et al.

Supreme Court of Missouri. Division No. 2.

March 6, 1906.

1. COVENANTS—GENERAL AND SPECIAL—LIMITATION.

General covenants in a deed whether express or implied from the use of the words "grant, bargain and sell," as provided by Rev. St. 1899, § 907, are not restricted by special covenants unless they are so irreconcilable that they cannot all have full force, or unless the limited covenant refers to, or is connected with the general covenants in such a manner as to show that the intention of the grantor was to restrain the effect of the general covenants.

2. SAME.

Where a deed contained the words "grant, bargain and sell," but thereafter provided that it was expressly understood "in the conveyance and in the covenants therein" that the grantors would warrant and defend the title against the lawful claims of themselves, their heirs, and those through whom they claimed, the implied covenants of warranty and seisin were limited by the subsequent covenant so as to relieve the grantors from liability for claims arising outside their chain of title.

Appeal from Circuit Court, Barry County; Henry C. Pepper, Judge.

Action by E. B. Miller against J. M. Bayless and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Edward J. White, for appellant. Davis & Steele, for respondents.

GANTT, J.

This is an appeal from a judgment of the circuit court of Barry county, Mo., sustaining a demurrer to the petition of the plaintiff and rendering final judgment thereon for the defendant. The appeal in the first instance was taken to the St. Louis Court of Appeals and the judgment of the circuit court affirmed, but one of the judges of the said court being of the opinion that the judgment of the court was in conflict with a prior decision of the said court, it was ordered that the cause be certified to this court for determination under the provisions of the Constitution. The facts of the case fully appear in the opinion of Judge Goode in the St. Louis Court of Appeals, 74 S. W. 648. The opinion is as follows:

"On February 1, 1893, John Bayless, Thomas Allen, and their wives, executed a deed to W. A. Stilley, which purported to convey the title to certain land in Barry county, Mo., to the grantee, Stilley. The granting clause in the deed recites that the grantors `do by these presents, grant, bargain, and sell, convey, and confirm unto the said party of the second part, his heirs and assigns the following lots, tracts, and parcels of land,' describing the same. Following the description is a habendum clause of the following tenor: `to have and to hold the premises aforesaid unto said party of the second part and unto his heirs and assigns, forever; that the said premises are free and clear of any incumbrances done by them, and it is expressly understood in this conveyance and in the covenants herein that the grantors will warrant and defend the title to said premises unto the said party of the second part and unto his heirs and assigns, forever, against the lawful claims and demands of themselves, their heirs, or those through whom they claim, except for taxes to become due.' After Stilley bought the land it passed by mesne conveyances, mostly in the nature of general warranty deeds, to the plaintiff Miller, who acquired the title July 11, 1898. Miller instituted this action February 5, 1902, on the covenants contained in the deed made by Bayless and Allen to Stilley. The court sustained a demurrer to the petition, the plaintiff refused to plead further, final judgment was entered on the demurrer in favor of the defendant, from which judgment the cause was appealed to this court.

"The petition states the execution of the deed containing the covenants in question, and alleges that it contained the covenants implied from the words `grant, bargain, and sell,' and of general warranty; that by its terms the defendants covenanted that they were seised of an indefeasible estate in fee simple in the premises conveyed, and had good right to convey the same; that Stilley paid $100 as a consideration for the land. Mesne conveyances are then stated, which sufficed to pass whatever title Stilley acquired to the plaintiff, the petition alleging that they also passed to the plaintiff the covenants of seisin and general warranty, so that those covenants became operative in favor of plaintiff. It is next averred that the said covenants were broken and violated by the defendants in this: that defendants did not have the legal right to the premises at the date of their conveyance, nor the right to the possession nor the possession thereof; but that the land was then in a raw, uncultivated state, in the possession of no one, and remained in this condition until August, 1897, when one F. R. Cartwright purchased the outstanding title, which was held by T. J. Corpeny at the date of said conveyance by the defendants. The petition avers that Cartwright, after purchasing the land, immediately entered into possession, and excluded the plaintiff from possession under a better title to said premises held by him, than plaintiff had, or than had been derived from the defendant. The petition avers that at the date of the execution and delivery of the deed to Stilley containing the covenants sued on defendants did not own the land, but that the title was then outstanding in the heirs of one Turner; that Cartwright, at the date of his entry into possession in August, 1897, entered and claimed the land under a superior outstanding title, which existed at the date of the conveyance executed by the defendants; but that until the entry of Cartwright no claim was made to said premises under the paramount title, nor was there an eviction of the plaintiff or his grantors from the premises. The damages which plaintiff sustained by reason of the alleged breach of the covenants are then stated, and judgment prayed for their amount. The demurrer filed by the defendants states two grounds: That the plaintiff had no capacity to sue; that the petition does not state sufficient facts to consitute a...