Pecare v. Pierre Chouteau's Adm'r

• Decision Date: 31 October 1850
• Citation: 13 Mo. 527
• Parties: JACOB PECARE, WHO SUES TO USE OF MORRISON & LEVY, v. PIERRE CHOUTEAU'S ADMINISTRATOR.
• Court: Missouri Supreme Court

13 Mo. 527

JACOB PECARE, WHO SUES TO USE OF MORRISON & LEVY,

v.PIERRE CHOUTEAU'S ADMINISTRATOR.

Supreme Court of Missouri.

October Term, 1850.

This action was brought on a covenant of seizen in a deed, and the breach assigned was, that defendant was not seized of all the land he professed to convey. Plea under Statute of 1847. The record in this case shows the following state of facts: On the 20th May, 1844, Pierre Chouteau, sen., conveyed to plaintiff with covenants of seizen a tract of land, which in his deed he describes as follows: “All that certain tract of land situate in the place commonly called Marias Cortoi, in the county of St. Louis, containing 57 arpents French superficial measure, bounded westwardly by land of one O'Niel, eastwardly by land of said Pierre Chouteau, northwardly by land of the late William Clark, and southwardly by land of the late Auguste Chouteau.”

On the trial of this case plaintiff read in evidence a deed from Chouteau to Clark, a deed from Clark to Goodfellow, and a deed from Pierre Chouteau to plaintiff that contained the covenant sued on. The plaintiff then proved by William H. Cozens, a practical surveyor, that at the time Chouteau made his deed to plaintiff, calling for 57 arpents, equal to 48 49-100 acres he had not so much land left in his tract, that the deed to Clark read in evidence covered 14 47-100 acres off of the eastern end of Chouteau's tract to satisfy the call for quantity in Chouteau's deed to plaintiff. This witness also proved that a larger or smaller quantity of land might be contained in the boundaries called for, provided Chouteau had still owned to the eastern end of his tract. That the boundaries called for in Chouteau's deed to plaintiff were as well satisfied by excluding as including the 14 47-100 acres. Upon this testimony the court instructed the jury that the plaintiff could not recover. Whereupon the plaintiff became non-suit, with leave to move to set the same aside, which motion having been overruled the plaintiff comes here by appeal.

LORD, for Appellant. The breach assigned in the declaration was fully sustained by the proof, and the court below erred in instructing the jury that the plaintiff could not recover. The covenant of seizen is broken if the vendor does not own all the land covered by his deed. This position is fully sustained by the following authorities: Leland v. Stone, 10 Mass. R. 459; Barns v. Learned, 5 N. Hamp. R. 264; Wilson v. Forbes, 2 Dev. N. Car. 30; Sedgwick v. Hollenbeck, 7 Johns. 376; Man & Toles v. Pearson, 2 Johns. 36. The covenant of seizen is an assurance to the purchaser, that the grantor hath the very estate both in quantity and quality which he purports to convey. Platte on Covenants, 306; 2 Hilliard's Abr. of the Law of Real Estate, 377; Opinion of Lord Ellenborough in Hovell v. Richards, 11 East, 642.

DARBY & FIELD, for Appellee. The only question in this case is whether the call for quantity in the testator's deed is a covenant that the land conveyed contained that...