Pineland Mfg. Co. v. Guardian Trust Co.

• Decision Date: 15 November 1909
• Citation: 139 Mo. App. 209,122 S.W. 1133
• Parties: PINELAND MFG. CO. v. GUARDIAN TRUST CO.
• Court: Missouri Court of Appeals

122 S.W. 1133

139 Mo. App. 209

PINELAND MFG. CO. v. GUARDIAN TRUST CO.

Kansas City Court of Appeals. Missouri.

November 15, 1909.

1. COVENANTS (§ 94) — COVENANT OF SEISIN — BREACH — NECESSITY OF EVICTION.

The rule that a grantor is not liable upon a covenant of fee-simple title until eviction, or something equivalent thereto, under a paramount title, applies in case of a failure of title, where no adverse title has been asserted, and generally where it is sought to avoid the payment of purchase money or the payment back of purchase money already paid, but does not apply in case of a covenant of an indefeasible estate in fee simple, where in fact the covenantor has no legal title whatever; there being a breach of the covenant warranting nominal damages the instant it was made, in which case the covenantee may sue when he has suffered substantial damages, though there has been no eviction.

2. VENDOR AND PURCHASER (§ 129) — PERFORMANCE OF CONTRACT — SUFFICIENCY OF TITLE.

Under a contract calling for a general warranty deed, a purchaser could not be compelled to accept a conveyance, where the legal title is outstanding in a third person.

3. COVENANTS (§ 132) — WARRANTY OF FEE-SIMPLE TITLE — BREACH — DAMAGES — EXPENSE OF PERFECTING TITLE.

Where a vendor covenanted to convey a fee-simple title, the legal title being in a third person, the purchaser could call upon the vendor to obtain a fee-simple title, and, upon its default, could institute proceedings to protect and perfect the title, and the necessary expense incurred therein would be substantial damage, for which recovery could be had of the vendor under its covenant.

4. COVENANTS (§ 132) — WARRANTY OF FEE-SIMPLE TITLE — BREACH — DAMAGES — ATTORNEY'S FEES.

For breach of such a covenant, attorney's fees and necessary reasonable expenses and proper court costs are allowable; attorney's fees being allowed only where notice of the action has been given to the covenantor.

5. LIMITATION OF ACTIONS (§ 180) — PLEADING — DEMURRER RAISING DEFENSE.

A defendant may take advantage of limitations by demurrer, when the bar appears on the face of the petition.

6. LIMITATION OF ACTIONS (§ 47) — ACCRUAL OF RIGHT OF ACTION — BREACH OF COVENANT OF TITLE.

Limitation begins to run against an action against a vendor for breach of covenant to convey a fee-simple title from the time substantial damage accrues, and where the date of the covenant was more than 10 years prior to the beginning of the action thereon, but there had been no eviction or equivalent act, and substantial damage only occurred upon expenditures in an action by the purchaser to perfect the title against a third person holding the legal title, within the 10-year period, the subsequent action on the covenant was not barred by 10 years' limitation.

Appeal from Circuit Court, Jackson County; Jas. E. Goodrich, Judge.

Action by the Pineland Manufacturing Company against the Guardian Trust Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Haff & Michaels and Daniel C. Ketchum, for appellant. Geo. H. English, Jr., and Edward C. Wright, for respondent.

ELLISON, J.

This action is based on a covenant of seisin contained in a general warranty deed for lands lying in the state of Louisiana. The judgment in the trial court was for the defendant. The defendant demurred to plaintiff's petition on the ground that it did not state a cause of action. The trial court sustained that view, and plaintiff thereupon appealed.

Stripped of detail, the petition states that plaintiff bought a large tract of land of defendant situated in the state of Louisiana, and received from defendant a general warranty deed containing covenants for an indefeasible estate in fee simple and for further assurance. It is then alleged that, at the time of defendant's deed to plaintiff, one Searing held the legal title to the land by regular conveyance from the state of Louisiana, the then owner. It is then alleged: That Searing laid claim to the land and demanded of plaintiff that he be paid $10 per acre therefor; that plaintiff did not know of Searing's title or claim until after it had made a contract of sale to third parties, when it was discovered that defendant did not have the title and had not conveyed any to plaintiff. It is further alleged: That upon discovering that nature of the title, and in order to put such title in condition that plaintiff could make sale of the land, plaintiff demanded of Searing that he make a deed thereof to plaintiff, which he declined to do unless it was bought of him as already stated, and that Searing threatened that unless it was bought of him he would sell to other parties. That, in order to prevent Searing conveying the land to innocent third parties, plaintiff, through its attorneys, began the preparation of an action for a decree of title, and did file in the proper office in said state a notice of lis pendens. That plaintiff notified defendant of these things and requested defendant to take charge of and prosecute such suit, or otherwise obtain the title from Searing, and that, if defendant did not do so, plaintiff would prosecute the action and hold defendant for all costs, fees, and expenses connected therewith, and that defendant refused to do so. That thereafter plaintiff did file its action against Searing in a court of competent jurisdiction in Louisiana praying that its title be declared to be null and void, and that the legal title be vested in plaintiff. That it was set up in the petition in such action that Searing purchased the lands from the state of Louisiana for the defendant and acting as agent for defendant, though he took the title in his own name. That Searing, the next day after plaintiff instituted such action against him, carried out his threat, and actually conveyed the land to a third party, though, on account of the lis pendens, the sale was of no avail. It was then...