Schnelle & Querl Lumber Co. v. Barlow

• Decision Date: 08 May 1888
• Citation: Schnelle & Querl Lumber Co. v. Barlow, 34 F. 853 (S.D. N.Y. 1888)
• Parties: SCHNELLE & QUERL LUMBER CO. v. BARLOW.
• Court: U.S. District Court — Southern District of New York

34 F. 853

SCHNELLE & QUERL LUMBER CO. v. BARLOW.

United States Circuit Court, S.D. New York.

May 8, 1888

Charles C. Burlingham and Joseph A. Shoudy, for plaintiff.

Wm. D Shipman, for defendant.

SHIPMAN J.

This is an action at law, in which a jury trial was waived, by written stipulation duly signed by the parties, and the case was tried by the court. The action was brought to recover the damages which were alleged to have been sustained by the plaintiff by reason of the breach of the covenant of seizin in the deed of the defendant and his wife of a lot of land in St. Louis, Mo., to Lesley Garnett. The facts which, upon such trial, were proved and are found by the court to be true, are as follows: The land in question is property described in the complaint, and is situated on the south-east corner of Eighth and Mullanphy streets in said St. Louis, having a front of 36 feet 3 inches on Eighth street, and a depth of 125 feet on Mullanphy street. In the partition of the estate of John Mullanphy, in April, 1842, the partition proceedings having been instituted in the month of August, 1841, said lot was set off and aparted to his daughter, Mrs. Ann Biddle, who died in January, 1846 having devised an undivided one-fifth interest in a tract of land, including said lot, to the use of her sister, Octavia Delaney, then wife of Dennis Delaney, 'for and during her life, and from and after her death to the use of the heirs of her body living at the time of her death, and for default of such issue then to the use of my own right heirs, forever ' Mr. Delaney, after the death of her said husband married Henry Boyce, and upon the partition of Mrs. Biddle's estate, in 1854, the said lot was allotted to two trustees, appointed under an antenuptial settlement of the said Henry Boyce and wife, 'to the use of Octavia Boyce (wife of Henry Boyce) for and during her life, and from and after her death, and for default of such issue then to the use of the right heirs of Ann Biddle deceased, forever. ' Mrs. Boyce died on November 12, 1876, leaving three children, John O F. Delaney, Jane Lindsay, wife of Andrew J. Lindsay, and Mary E. Boyce. On April 15, 1867, Mrs. Boyce and one of her trustees, her said husband being in life, but not joining in said conveyance, executed a deed of said lot in fee, with general and special covenants, to the defendant, said deed purporting to be an absolute conveyance thereof. On March 18, 1872, the defendant and his wife conveyed said lot in fee-simple to Lesley Garnett. The words of conveyance which were used in said deed were 'grant, bargain, and sell.'

The statute of Missouri, in existence at the date and execution of said deed, and ever since the existing statute in said state, is as follows:

'The words 'grant, bargain, and sell' in all conveyances in which any estate of inheritance in fee-simple is limited, shall, unless restrained by expressed terms contained in such conveyances, be construed to be the following expressed covenants on the part of the grantor, for himself and his heirs, to the grantee, his heirs and assigns: First, that the grantor was, at the time of the execution of such conveyance, seized of an indefeasible estate in fee-simple, in the real estate thereby granted; second, that such real estate was, at the time of the execution of such conveyance, free from all incumbrances done or suffered by the grantor or any person under whom he claims; third, for further assurances for such real estate to be made by the grantor and his heirs and to the grantee and his heirs and assigns; and may be sued upon in the same manner as if such covenants were expressly inserted in the conveyance.' 1 Rev.St.Mo. 1879, p. 110.

The settled construction of the statutory covenant by the highest court of Missouri, as first declared in Dickson v. Desire, 23 Mo. 151, and substantially affirmed in Magwire v. Riggin, 44 Mo. 512; Jones v. Whitsett, 79 Mo. 191, and Allen v. Kennedy, 91 Mo. 324, 2 S.W.Rep. 142, is, as stated in Magwire v. Riggin, that the words 'grant, bargain, and sell' are a covenant that runs with the land, of indemnity, continuing to successive grantees, and inuring to the one upon whom the loss falls. ' A contrary construction had been originally announced by the same curt in Collier v. Gamble, 10 Mo. 467.

Said Garnett and wife conveyed the said lot in fee-simple to Charles F. Querl, as trustee, and subsequently, on August 8, 1884, the title of said Garnett and wife became vested in the plaintiff, which immediately entered into and still continues in possession of said land. On March 12, 1886, and after the termination of the suit of Barlow v. Delaney, hereinafter mentioned, the said heirs of the body of Mrs. Boyce caused to be served upon the tenant of the plaintiff a notice demanding the surrender of said lot, and notifiing the tenant to pay no rent but to them. The plaintiff having examined its title to the said premises, became satisfied that it had none, and, being threatened by the said heirs with a suit in ejectment, paid to them, on April 15, 1886, the sum of $2,537.50 for said land, which was a reasonable and moderate price therefor, and thereupon received a deed from said heirs, which conveyed to it all their right, title, and interest in said land. On August 8, 1846, Norman Cutter commenced in the proper court in St. Louis an action of trespass and ejectment against William Waddingham, demanding the possession of a large tract of land claimed by the heirs of John Mullanphy as a part of his estate, of which tract the lot in question was a part, and damages for the ejection of the plaintiff therefrom. Waddingham was the tenant in possession. The living heirs and representatives of John Mullanphy were made party defendants. Mrs. Biddle, who had theretofore died, was not a party. Mrs. Boyce was a party; her children were not parties. The litigation ^[1] continued till February 4, 1865, when a verdict was rendered in favor of the plaintiff for the possession of eleven undivided thirtieths of the whole tract, and damages of $27,500 for the trespass and ejectment and withholding possession and a monthly value of $192.50 for any subsequent possession. An appeal was taken to the supreme court of Missouri, but was not prosecuted, and was dismissed by the appellants in December, 1868. On June 5, 1852, the said Cutter sold his interest in nine twenty-fourths of the land described in the declaration in said suit to Henry D. Bacon, and on February 15, 1854, conveyed the remainder of said tract to said Bacon and Daniel D. Page; and said Page and Bacon, by deed dated September 23, 1857, conveyed the whole tract to the defendant for $125,000. In 1866, said Octavia Boyce, and the defendant entered into an agreement by which they agreed for the purposes of settling said litigation, that the defendant was entitled to twelve-thirtieths of all parts of said tract of land to which the said Boyce derived title under John or Bryan Mullanphy or Ann Biddle, or which had been theretofore set off to her in partition, and that she was entitled to eighteen-thirtieths thereof, and that partition should be made of said interest. The result was a partition and conveyances between Mrs. Boyce and the defendant of the portion of this tract of land which had been allotted to her. Certain of the lots which he conveyed to her have descended to her said children which they still hold. He also indemnified Mrs. Boyce against any liability under said Cutter judgment. In part fulfillment of this agreement, she made the conveyance of the lot in question which has been heretofore mentioned. The twelve-thirtieths was inserted by mistake instead of eleven-thirtieths.

In the latter part of 1881, it came to the knowledge of the defendant that the children of Mrs. Boyce were claiming title to the two lots conveyed to him by their mother, of which she had only a life-estate under the will of Mrs. Biddle. He thereupon instituted a suit in equity before the circuit court for the city of St. Louis against said children, in which he averred that he had recently learned and believed it to be true, and so stated, that the said Boyce had only a life-estate in...