Morgan v. Hann. & St. Jo. R.R. Co.

• Court: Missouri Supreme Court
• Writing for the Court: HOUGH
• Citation: Morgan v. Hann. & St. Jo. R.R. Co., 63 Mo. 129 (Mo. 1876)
• Decision Date: 31 May 1876
• Parties: CHARLOTTE MORGAN, Respondent, v. THE HANN. & ST. JO. R. R. CO., Appellant.

63 Mo. 129

CHARLOTTE MORGAN, Respondent,

v.THE HANN. & ST. JO. R. R. CO., Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Livingston Circuit Court.

Carr, Hall & Oliver, for Appellant.

W. C. Samuels, for Respondent, cited Clarkson vs. Buchanan, 53 Mo. 563, and authorities there cited.

HOUGH, Judge, delivered the opinion of the court.

On the 8th day of August, 1865, the defendant sold and conveyed to the plaintiff, with covenants of general warranty, forty acres of land in the county of Livingston.

On the 12th day of May, 1871, the county of Livingston, claiming to own the same under the swamp land grant, conveyed said land to one J. H. Drake, to whom, as holding the paramount title, the plaintiff surrendered the possession without suit, and brought the present action to recover damages for a breach of the defendant's covenant of warranty.

There was a finding and a judgment for the plaintiff, and defendant has appealed to this court.

It is contended here that the plaintiff should not have had judgment, as no eviction was shown. 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 the language of Justice Gibson, in Clark vs. McAnulty (3 Serg. & Rawle, 372), “The law does not require the idle and expensive ceremony of being turned out by legal process when that result would be inevitable.”

In all 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.

In the case at bar the plaintiff has wholly failed to show that the paramount title was in Drake, or in his grantor, the county of Livingston. Testimony was offered to show that the land was wet, and for a long time prior and subsequent to the passage of the act of congress in 1850, known as the swamp land grant, was partially covered by water. But there was no testimony tending to show that it was ever selected as swamp land under the provisions of that act, or that it had ever been confirmed or patented to the State. (Clarkson vs. Buchanan, 53 Mo. 563.) It was necessary, so far as the county and its grantees are concerned, that the subject matter of the swamp land grant should have been in some way ascertained and...