Rice v. Cook
| Decision Date | 06 July 1909 |
| Parties | D. S. RICE, Respondent, v. J. M. COOK, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Stoddard Circuit Court.--Hon. James L. Fort, Judge.
AFFIRMED.
Judgment affirmed.
Henry S. Shaw for appellant.
(1) The notice to a warrantor of land of the adverse suit therefor in order to conclude him by the judgment therein, must be distinct, unequivocal, and expressly require him to defend such adverse suit. Wheelock v. Overshiner, 110 Mo 100; McCrillis v. Thomas, 110 Mo.App. 699. (2) Cook was a necessary party as to the tract claimed by him and was bound to defend that. An appearance for one purpose is not necessarily, an appearance for all purposes. Anderson v. Brown, 9 Mo. 646. (3) Where one is bound to protect another from liability he is bound by the result of a litigation to which such other is a party, provided he had notice of the litigation and an opportunity to control and manage it. Koontz v. Kaufman, 31 Mo.App. 397; Strong v. Insurance Co., 62 Mo. 289; 2 Black on Judgments, sec. 570. (4) Rice and Cook were not adversary parties in the Mott case, hence the judgment in that case is not res judicata as between them. McMahon v. Geiger, 73 Mo. 145; Bank v. Bartle, 114 Mo. 276; Comstock v. Keating, 91 S.W. 416. (5) Rice waived his right to require Cook to defend the title to the land by employing counsel and defending on his own theory. Williams v. Railroad, 153 Mo. 487; 29 Am. and Eng. Ency. Law (2 Ed.), p. 1103, notes 2 and 3. (6) The sheriff's deed was competent to show color of title in defendant and his grantee. Hickman v. Link, 97 Mo. 482. (7) Where a deed is dated subsequent to the date of the acknowledgement, the latter date will be regarded as the date of the deed. Gorman v. Stanton, 5 Mo.App. 595. (8) In the absence of a statutory requirement, a date is not essential to the validity of a deed. 9 Am. and Eng. Ency. Law, pp. 150, 151, note 5.
George W. Murger and H. H. Larimore for respondent.
This is an action on the usual covenant of warranty contained in a deed of conveyance. Plaintiff recovered and the defendant appeals. It appears that plaintiff purchased from the defendant eighty acres of land situate in Stoddard county. The defendant executed to him a deed of conveyance containing the usual covenants of warranty. About a year after plaintiff purchased the land from the defendant one Mott and others instituted a suit to define and quiet the title of said lands against both the plaintiff and defendant in the circuit court of Stoddard county. Both plaintiff covenantee and defendant covenantor were duly served with process of summons in that case and appeared and defended the same in the circuit court. Plaintiffs, Mott and others, recovered judgment in that suit against both the present plaintiff and defendant, his covenantor. No appeal was prosecuted from that judgment. In due time, the present plaintiff, covenantee, was duly evicted as a result of the judgment in the case of Mott and others against the present plaintiff and defendant, under the paramount title thus established. After plaintiff had been evicted, he instituted this suit against defendant, his covenantor, on the covenant of warranty contained in the deed. Upon a trial of the present action, plaintiff introduced in evidence the record and judgment in the case of Mott and others against the present defendant and plaintiff himself, to the end of establishing the paramountcy of the title under which he had been evicted. The defendant objected to this record and judgment, for the reason plaintiff had failed to notify him of the suit of Mott and others against the present plaintiff and defendant. The objection was overruled and the evidence received. Plaintiff introduced no other evidence in the present case tending to show the title under which he had been evicted was paramount to that conveyed to him by the defendant. The sole argument advanced here for a reversal of the judgment is that the plaintiff is not entitled to recover in this action in the absence of a showing, other than the judgment and record in the case of Mott and others against the present plaintiff and defendant, that the title under which plaintiff was evicted was paramount. This argument proceeds from the fact that plaintiff failed to notify the defendant of the pendency of the action of Mott and others against the present plaintiff and defendant and call upon defendant to defend the same. It is said unless plaintiff notified the defendant of that suit, and required him as covenantor to defend the title of the plaintiff covenantee in the deed, then the defendant is not bound by the judgment in that case. Or in other words, that that judgment is not sufficient to establish the paramountcy of the title under which the plaintiff covenantee was evicted. The principal case...
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