Priest v. DeAver

• Decision Date: 11 May 1886
• Citation: 22 Mo.App. 276
• Parties: JOHN G. PRIEST, ADMINISTRATOR, Respondent, v. JAMES A. DEAVER ET AL., Appellants.
• Court: Missouri Court of Appeals

22 Mo.App. 276

JOHN G. PRIEST, ADMINISTRATOR, Respondent,

v.JAMES A. DEAVER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 11, 1886.

APPEAL from the St. Louis Circuit Court, W. H. HORNER, Judge.

Reversed nisi.

GIDEON D. BANTZ, for the appellants: The general judgment against the appellants was erroneous; the judgment should have been special against the property descending. The debt of the ancestor is the debt of the heir only in respect of the property received by descent. Metcalf v. Smith, 40 Mo. 572; Rev. Stat., sect. 2337. The judgment against husbands of heirs was erroneous. Wadsworth v. Henderson, 16 Fed. Rep. 447-451. The cause should, for this reason, be reversed as to all. Rush v. Rush, 19 Mo. 441. Interest is not allowed, except by way of anticipation of a recovery against the covenantee for mesne profits. Hence, where the covenatee is not liable for mesne profits, the covenantor will not be liable to him for interest. Rawle Cov. Tit. (3 Ed.) 300; Lawless v. Collier, 19 Mo. 486; Hutchins v. Rountree, 77 Mo. 500; Foster v. Thompson, 41 N. H. 380. The breach clearly involved proximate damage; and like an outstanding term, the damage should be assessed for the future, as well as the present. Porter v. Bradley, 7 R. I. 538. The courts have gone even further, and it is held that in breaches of covenants to support for life, the damage for the entire period will be assessed. Schell v. Plumb, 55 N. Y. 592; Amos v. Oakley, 131 Mass. 413.

KRUM & JONAS and W. H. CLOPTON, for the

repondent: Intermediate covenantees have no right of action against their covenantors, until they have been compelled to pay damages. Bingham's Act. & Defs. 390; Chase v. Wicton, 12 N. H. 413; Booth v. Starr, 1 Conn. 247; Withy v. Mumford, 5 Cow. 137, 142. The measure of damages on breach of a covenant against incumbrances is the amount paid with interest. Bing. on Act. & Defs. 415; Prescott v. Truman, 4 Mass. 627; Thayer v. Clemence, 22 Pick. 490; Foote v. Bennett, 10 Ohio 317.

THOMPSON, J., delivered the opinion of the court.

This is an action of the same nature and between, substantially, the same parties as the action which was before this court under the style of Walker's Admistrator v. Deaver (5 Mo. App. 139), and before the supreme court on a subsequent trial and appeal from a pro forma judgment of this court, under the same style, in 79 Mo. 664. The only difference between this action and that is, that there has been a slight change in the parties defendant, and that the object of this action is to recover from the heirs of Larkin Deaver, deceased, according to their respective shares in his estate, received under his will, the aggregate sum with interest, which the plaintiff, as administrator de bonis non of Isaac Walker, deceased, had, subsequently to the bringing of this action, been compelled to pay in annual instalments of six hundred and fifty dollars each, to Mrs. Houghan, under a judgment of the St. Louis land court, in liquidation of her dower interest in certain lands originally conveyed by Larkin Deaver. As the facts, upon which the action is based, are fully recited in the opinion of this court, and, also, in that of the supreme court in the former action, it will not be necessary to re-state them, except to say that the payments, to recover back which the plaintiff now sues, were eight annual payments of six hundred and fifty dollars each, made in the month of June of each year, the first in the year 1875 and the last in the year 1882. There was a trial before a jury, and the plaintiff had a verdict assessing his damages in the aggregate sum of $6,292.00, which was apportioned among the several defendants as hereinafter stated. From this judgment the several defendants have appealed. The judgment is questioned on three grounds.

I. The statute of limitations. This ground is clearly not well taken. The decision of the supreme court in Walker's Administrator v. Deaver (79 Mo. 664), which must be regarded as, in a certain sense, the law of this case, and the decision of this court in White v. Stevens (13 Mo. App. 240), and several cases cited in these two opinions, show that an action for a breach of a covenant against incumbrances does not accrue until the plaintiff has been compelled to pay money in order to prevent an eviction or to clear off the incumbrance, and, accordingly, that the statute of limitations does not begin to run until that time. In this case, the earliest instalment sued for was paid in 1875, and the action was brought in 1883. The limitation prescribed is the period of ten years (Rev. Stat., sect. 3229), and, therefore, if the plaintiff had a substantial right of action to recover these instalments, the statute has not barred it.

II. The next objection is, that the former recovery is a bar to this action. That recovery was for a number of instalments which had been paid prior to those for which the present action is brought; that judgment did not include any payment for which the present judgment is rendered. But the argument is, that in a case of this kind, the plaintiff is bound to bring his action for his entire damages, past and prospective; that his cause of action is for a single breach of the coveanant in the deed sued on, and that he can not divide this cause of action up into a number of successive suits. This, indeed, seems to be the general rule; but the rule does not seem to apply in a case where dower has been assigned in the form of an annuity charged upon the land, as in this case. Aside from the objection that the rule, if thus applied, would involve the inconvenience and injustice, to one party or the other, of allowing a recovery of damages based upon an uncertain contingency, it would, also, be inconsistent with the fundamental rule, which obtains in this state in respect of actions upon covenants against incumbrances, which, as already stated, is that the gravamen of the action is the loss to which the covenantee or his grantee has been subjected in discharging the incumbrance. If this loss takes the form of a payment of annual instalments to a dowress, awarded to her by the judgment of a court in a proceeding to admeasure her dower under section 2216, Revised Statutes, it is difficult to see upon what ground, in harmony with the rule above stated, the plaintiff could have an assessment in one action of all damages, present and prospective, not only the damages which he has paid, but those which he would probably have to pay, and recover this amount from the heirs of the covenantor. He can not recover anything at all until he has paid something, and, as a necessary corrollary, he can at most recover what he has paid. Although the covenant is technically broken at the time it is made, yet he has no right of action then, because he has suffered no special injury. How, then, could he have recovered in the former action, under this rule, anything which he had not paid? If he could not have recovered in that action the prospective annuities which he would probably have to pay, that judgment is clearly no bar to his present recovery. If, instead of bringing that action, he had waited until the death of the annuitant, all the payments, except those made within the last ten years, would have been barred by limitation. There is, then, no rule of reason or justice which will cut him off from his present action on the ground that the former adjudication is an estoppel.

Between the cases in which there may be successive recoveries upon successive claims arising out of the same contract, and those in which a single recovery for a breach puts an end to all further liability on that contract, it is sometimes very difficult to distinguish. As was said by this court in Kerr v. Simmons (9 Mo. App. 376), the test question generally is, whether the subsequent suit is for a breach of the same, or a different undertaking from that upon which the first suit was maintained. Thus, in the case of a lease for a year, with the rent payable monthly, although the contract is a unit, yet there is a separate undertaking for the payment of each month's rent. The lessor, therefore, having recovered judgment for one month's delinquency, may yet sue and recover for the non-payment of a succeeding month's rent. Kerr v. Simmons is itself an illustration of the other class of cases. The lessee had covenanted for a surrender of the premises at the end of the term, otherwise to pay double rent for every day he should hold over. He held over for one month; thereupon the lessor sued and recovered the double rent for that month. He held over another month, at the expiration of which the lessor sued again. It was held that he could not recover, because the gravamen of the action was, not the several undertakings to pay double rent for each month (which constituted only an agreed measure of damages), but the breach of the single undertaking to surrender possession; and, as this breach had been the subject of one recovery, there could not be another for the same cause. A similar...