Montgomery v. Harker
| Decision Date | 31 October 1883 |
| Parties | MONTGOMERY v. HARKER et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court.--HON. J. M. DAVIS, Judge.
AFFIRMED.
E. J. Broaddus for appellants.
The court erred in rendering judgment against appellants for the full amount of the bond--$3,000--the amount due upon the deed of trust at the date of sale being only $500, with some interest. The true measure of damages was the amount plaintiff would have been compelled to pay to extinguish the incumbrance. Prescott v. Freeman, 3 Am. Dec. 246; Funk v. Voneida, 14 Am. Dec. 617; Kellogg v. Martin, 62 Mo 429. The measure of damages adopted by the court applies to covenants of seizin, and not to covenants against incumbrances. St. Louis v. Biggle, 46 Mo. 157; Henderson v. Henderson, 13 Mo. 151. If it is held that the writing in suit is a covenant against incumbrances, then the rule laid down in cases last cited should have been applied in the assessment of damages, provided plaintiff was entitled to recover at all. The petition alleges that the writing in suit was a contract for further assurance, and if this court so holds, then plaintiff was entitled to no damages, for the reason that the incumbrance shown to have existed was not under the control of appellants. Armstrong v. Darby, 26 Mo. 517. The terms of the writing in suit do not, by any fair rule of interpretation, include the incumbrance in question.
L. T. Collier for respondent.
The instrument in suit binds the parties executing the same to make the respondent a perfect title. It covers all defects of whatsoever kind, whether they be incumbrances by deeds of trust, judgments or outstanding claims or titles. The language of the instrument in question is so plain as to leave no room for construction, and the oral testimony given on the trial was improper, and should be disregarded. Pavey v. Burch, 3 Mo. 314; Singleton v. Fore, 7 Mo. 515; Gooch v. Conner, 8 Mo. 392; St. Louis Gas Light Co. v. St. Louis, 46 Mo. 127; Kimball v. Brawner, 47 Mo. 399; Edwards v. Smith, 63 Mo. 119. The defense set up by appellants is without foundation in law or fact. Plaintiff was under no obligation to remove the incumbrance of the deed of trust given by Noble to Edgerton, having accepted the agreement in question, and having been evicted of the premises by the purchaser under the trustee's sale, he is entitled to recover his consideration money; nor was he bound to purchase at such sale in order to protect his title. Rawle on Covenants for Title, (3 Ed.) 144, 145.
This was a suit on the writing hereinafter set forth, for failure, as alleged, to perfect the title to the real estate therein named, which, on the day of the date of this writing, April 22nd, 1870, plaintiff had purchased from the defendant Harker, and paid him cash for it, to-wit, $3,000.
The petition then alleges: That at the time of the making of said writing, there was an encumbrance on said lot, consisting of a deed of trust dated October 8th, 1866, excuted by defendant Noble and wife (who were the then legal holders of said premises,) to defendant Edgerton, trustee for Martin Sharp and Elizabeth Berry, to secure the payment of $1,000, then unpaid. Of all which defendants had notice. That afterwards, on the 26th day of August, 1875, said deed of trust by trustee, the defendant Edgerton, was duly foreclosed, and Elizabeth Berry became the purchaser for the sum of $350, who received a deed therefor from the trustee. That the title conveyed by said Edgerton, trustee, was paramount to the title of the plaintiff, and the plaintiff was evicted from the premises by the purchaser thereunder, the said Elizabeth Berry.
The defendants, after admitting all the material allegations in the petition, further answered as follows: That plaintiff, at the time he purchased said lot had both actual and constructive notice of said encumbrance; that the object in taking from the defendants the bond in suit, was not to protect plaintiff from said encumbrance, but to secure him against a known defect which existed in the title, towit: That Martin Sharp and Elizabeth Berry, the beneficiaries in said deed of trust, had on the 8th day of October, 1866, conveyed the lot to Alexander Noble, that Noble had conveyed it to Harker, and Harker to plaintiff; that Martin Sharp's title was defective in this; that he had only an equity; that the title he claimed to have conveyed was in the heirs of Benjamin Berry, deceased; that plaintiff refused to pay defendant, Harker, the purchase money until this defect in the title was cured. Hence the execution of the writing in suit. That in order to comply with said bond in suit, and perfect the title as understood between the parties, defendant, Harker, on the...
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