Munford v. Keet

• Decision Date: 05 February 1900
• Parties: MUNFORD et al., v. KEET, Appellant
• Court: Missouri Supreme Court

55 S.W. 271

154 Mo. 36

MUNFORD et al., v. KEET, Appellant

Supreme Court of Missouri, First Division

February 5, 1900

Transferred from St. Louis Court of Appeals.

Reversed and remanded (with directions.)

Massey & Tatlow for appellant.

(1) The sheriff in selling the property under the execution, under which Maggie C. Baker obtained her title, was the agent of both plaintiff and defendant, owing a like duty to each, and bound to protect the interest of all parties concerned. Conway v. Nolty, 11 Mo. 74; Shaw v. Potter, 50 Mo. 281; Hollingsworth v. Shannon, 113 Mo. 508; Cole Co. v. Madden, 91 Mo. 585; State ex rel. v Moore, 72 Mo. 285; Hardware Co. v. Building Co., 132 Mo. 454. (2) In this State a covenant against incumbrances is treated and held to be one of indemnity only. Kellog v. Malin, 62 Mo. 432; Ward v Ashbrook, 78 Mo. 515. (3) Beyond all question the court committed error in refusing to permit the defendant to appear and participate in the trial on the assessment of damages, or in other words the writ of inquiry; to cross-examine plaintiffs' witnesses; offer evidence in mitigation of damages, and have same assessed by jury if he so demanded. This ruling of the trial court in so construing sections 2214 and 2215, R. S. 1889, shows an utter disregard on the part of the court of the mode of procedure under the common law of England for centuries; and the repeated rulings of the highest and last court in this State for more than half a century, as well as the plain provisions of the organic law of our State. The effect of this ruling was to compel the defendant to stand in court with his mouth shut, and witness an ex parte proceeding of the court and the opposite side, in rendering a judgment against him without the right to introduce witnesses, cross-examine plaintiffs' witnesses, or to have a jury, or otherwise participate in the trial. The mere statement of such a proposition is a demonstration of a most flagrant and gross error on the part of the trial court. Witsell v. Waters, 18 Mo. 396; Roberson v. Lawrence, 26 Mo. 69; Frost v. Burton, 15 Mo. 620; Munford v. Wilson, 19 Mo. 669; Barclay v. Picker, 38 Mo. 143.

T. J. Murray for respondents.

(1) The only question to be determined in this suit is: "Did the judgment lien referred to in plaintiff's petition ripen into and become a paramount title to the one acquired from the defendant, and if so, was the price paid for the out-standing title, to prevent an eviction a reasonable sum and not more than the covenantor received when he sold the land?" Wheelock v. Overshire, 110 Mo. 100; Matheny v. Steward, 108 Mo. 73. (2) A vendee of land threatened with eviction may surrender possession to the holder of the paramount title and still maintain an action on his covenants of warranty. Lambert v. Estes, 99 Mo. 604; Tracy v. Greffet, 54 Mo.App. 562. (3) When used for the purpose of striking out any pleading or any portion thereof a motion is governed by the rules governing demurrers. Paddock v. Somes, 102 Mo. 226. (4) When a portion of defendant's answer was stricken out and he refused to file any further pleading he was in default. Sec. 2066, R. S. 1889. This section compels a party to a suit, when a part of his pleadings has been stricken out, to either plead over or stand in default; the word "may" in this case means must if the party wishes to remain in court. Spaulding v. Suss, 4 Mo.App. 549; Thompson v. Lessee of Caroll, 22 How. 434; Monks v. Strange, 25 Mo.App. 16; Tower v. Moore, 52 Mo. 120; Smith v. Wineland, 21 Mo.App. 387. (5) As the defendant was in default, the right of trial by jury to assess damages was waived. Section 2133, R. S. 1889; Tower v. Moore, 52 Mo. 118; State v. Steen, 115 Mo. 474; Baker v. Railroad, 107 Mo. 239; Railroad v. Randolph Town Site Co., 103 Mo. 470.

OPINION

MARSHALL, J.

Damages for breach of covenant of title.

This cause was certified to this court by the St. Louis Court of Appeals under section 6 of the amendment of the Constitution, 1884, because Biggs, J., deemed the decision of that court in this case to be contrary to the previous decision of that court in State to use v. Finn, 19 Mo.App. 560.

Briefly stated the question for determination is this: the plaintiff sues the defendant for a breach of a covenant of title, contained in a deed of trust executed by him, and seeks to recover six hundred dollars, alleged to have been paid to acquire an outstanding paramount title. The petition alleges that one Horine conveyed the property to the defendant in 1892, and in 1893 the defendant gave a deed of trust thereon to the National Loan & Investment Company of Springfield, to secure a loan of one thousand dollars. The deed of trust contained the words "grant, bargain and sale," thereby expressing the covenants covered by section 2402, Revised Statutes 1889. At the date of the conveyance to the defendant of the deed of trust there was outstanding a judgment of the Circuit Court of Greene County in favor of James Baker and against Horine for one hundred dollars, but an appeal, with a proper supersedeas, was pending therefrom. The defendant did not pay the debt secured by the deed of trust; and in March, 1894, the trustee foreclosed that deed, and one Halderman, secretary and general manager of the cestui que trust, became the purchaser at the trustee's sale, and during the same month Halderman conveyed the land to the plaintiff Helen C. Munford. Thereafter in May, 1894, the judgment against Horine, having been affirmed, the land was sold under execution issued thereon, by the sheriff, and Maggie C. Baker, the wife of James Baker, the plaintiff in the execution, became the purchaser. Mrs. Baker asserted title against the plaintiff herein, Mrs. Munford, and to protect the title Mrs. Munford claims to have paid Mrs. Baker six hundred dollars for her title acquired at the sheriff's sale, and then brought this action to recover that sum from defendant.

The answer of defendant is as follows:

"Comes now the defendant and for amended answer to plaintiff's last amended petition avers and states:

"That the plaintiffs have no interest in this case, and are not the real parties in interest, and not entitled to prosecute said action, for the reason that they are neither the real party in interest nor the trustee of an express trust.

"And for another and further answer the defendant specifically denies that plaintiffs were compelled to and did purchase the said title mentioned in said petition from the said Maggie C Baker, to prevent being evicted from said premises, but aver and charge that such title was purchased by the National Loan and Investment Association, and not by the said plaintiff as alleged in said petition, for the purposes hereinafter stated. And denies, further, that plaintiff or the National Loan and Investment Company paid $ 600 for such title, and denies further that $ 600, if so paid, was a reasonable or just price for such title, but avers and charges the facts to be as follows: [That the title so sold by the said Maggie C Baker, if of any force and validity against the title conveyed by the defendant in this case to the grantors of plaintiffs (which the defendant does not admit), then such title was a mere naked title and was not worth the sum of $ 600, or anything like that amount, and was not worth to exceed $ 25; and that such title could have been procured by defendant in this case for that amount, if the plaintiff or the said investment company had notified and requested defendant so to do, instead of purchasing the same from the said Maggie C. Baker. That is to say, that the title of the said Maggie C. Baker was obtained by a sheriff's deed at a sale under a judgment against Horine et al., made at the May term, 1894, of this court; that said deed could easily have been set aside on a motion made in said cause by the plaintiffs at said term, at a small and trifling expense, and if plaintiffs had notified the defendant, defendant could and would have caused such sheriff's deed to Maggie C. Baker to have been set aside, and the lien of the judgment removed from off of said land, so as to leave the same free and clear from any lien, for a price not to exceed $ 125, by causing said sheriff's deed to be set aside and annulled, and by paying off said judgment and costs. That the facts with reference to the said sale are as follows: That said judgment was obtained by one James Baker against one S. H. Horine and one Yates, on the day of , 1892. That in said cause the said Horine and Yates took an appeal to the St. Louis Court of Appeals and gave a good and solvent appeal bond and caused said judgment to be thereby superseded, as provided by statute, pending said appeal. That at the time of taking said appeal the said S. H. Horine was a wealthy citizen of Greene county and possessed a large amount of valuable property; that a great deal of such property being of great value, after the rendition of said judgment was conveyed by the said Horine to various parties on abstracts showing the title free and clear from any incumbrances, which judgment was omitted from such abstracts for the reason that the abstractor understood and believed that an appeal being taken and a supersedeas bond given the same no longer constituted a lien on the property, but that the bond stood for and in the place of such lien. That in truth and in fact the property mentioned in plaintiff's petition was conveyed by the said Horine to the grantor of defendant, and by defendant to the National Loan and Investment Company on the same abstracts, without any knowledge of the fact that any such judgment was a lien on such property. That after the affirmance of such judgment by the St. Louis Court of Appeals, the said James Baker, knowing that the said Horine had...