Shelton v. Pease

• Decision Date: 31 March 1847
• Citation: 10 Mo. 473
• Parties: SHELTON v. PEASE.
• Court: Missouri Supreme Court

10 Mo. 473

SHELTON

v.PEASE.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

This was an action of covenant on a deed poll, bearing date 1st June, 1839, whereby it is witnessed that the defendant and wife, for a money consideration expressed, grant, bargain and sell to the plaintiff a lot in the city of St. Louis, particularly described, “on which lot of ground there is a mortgage executed by the grantors to Charles S. E. Languemare, dated 17th August, 1837, recorded in the recorder's office in book R, No. 2, page 237, to secure to the said Languemare the payment of $5,000, with interest at the rate of six per cent. per annum, payable semi-annually--the one-half of said sum of $5,000 payable in five years, and the other half in six years from the date of the mortgage;” to have and to hold the said lot of ground, and all the rights, privileges, &c, unto the said John G. Shelton, his heirs and assigns forever. And the said Joseph S. Pease, for himself, his heirs, &c., doth covenant with the said John G. Shelton, his heirs and assigns, against all persons claiming or to claim the same, in law or equity, and against all titles, liens and incumbrances whatsoever, and particularly against the mortgage above described to warrant and defend the premises forever.

The original declaration sets out the substance of the deed, recitals and covenants, and assigns as breaches, 1st. That the defendant hath not defended the premises conveyed to the plaintiff against said mortgage, but has wholly neglected and refused so to do; and by means thereof, the plaintiff was forced and obliged to pay, lay out and expend, and did pay, lay out and expend, $1,432 20 towards the satisfaction and discharge of the mortgage. 2nd. That the lot conveyed was not, at the time of the conveyance, free from incumbrances suffered by the defendant, by means whereof the plaintiff was obliged to pay, and did pay, in and about discharging incumbrances on the lot, $ --

The defendant pleaded to the first breach, 1st. That plaintiff did not necessarily pay said sum of money in the breach mentioned, or any part thereof, towards the satisfaction and discharge of said mortgage. 2nd. That the detendant did defend the premises against the mortgage. 3rd. A discharge of the defendant as a bankrupt.

To the second breach the defendant demurred generally. The plaintiff took issue on the first and second pleas, and demurred generally to the third. The court sustained the demurrer of defendant to the second breach, and overruled that of plaintiff to third plea--but no judgment was rendered. The plaintiff having asked and obtained leave to amend his declaration, an amended declaration was accordingly filed--upon, which, with pleas thereto, the case is now before the Supreme Court.

The amended declaration sets out the deed of the defendant in haec verba, and then avers that by the said deed it was covenanted that the defendant would pay the said mortgage debt and interest as the same should become due, according to the tenor and effect of said mortgage: that he would warrant and defend the premises conveyed to the plaintiff, against the mortgage--that the lot conveyed was, at the time of the conveyance, free from incumbrance suffered by the defendant--and assigns, as breaches, that the defendant did not pay the said mortgage debt and interest, as the same became due, but neglects and refuses to do so, and the plaintiff paid $1,432 20 towards the satisfaction and dischage of the mortgage. 2nd. That the defendant hath not warranted and defended the premises against the mortgage, but has neglected and refused to do so; and by means thereof, the plaintiff was obliged to pay, and did necessarily pay, $1,500 in discharge of the mortgage. 3rd. That the lot was not, at the time of the conveyance, free from incumbrances suffered by defendant, and by means thereof, the plaintiff was obliged to pay, and did necessarily pay, a large sum of money in discharging incumbrances to which the lot was subject at the time of the execution of the deed, and which had been suffered by the defendant. The defendant pleaded six pleas to the amended declaration; the third, which is the only one involved in the judgment, is to the whole declaration, and is a formal plea of a discharged under the Bankrupt law of the United States, upon a petition filed after the making of the deed, and a formal decree thereon before the commencement of the suit, discharging the defendant from all debts owing by him at the time of filing his petition.

The plaintiff filed three replications to this plea: 1st. The first alleges that the defendant heretofore, to-wit: on the first August, 1842, made a transfer of property, in contemplation of bankruptcy, and for the purpose of giving a preference to a creditor of said defendant, over the general creditors of the defendant. 2nd. That the defendant heretofore, to-wit: on the first August, 1842, made a transfer of property, in contemplation of bankruptcy, and for the purpose of giving a preference to Richard S. Tilden, L. B. Shaw and Mary Brown, over the general creditors of the defendant, with an averment that on the day and year last aforesaid, said Tilden, Shaw and Brown, as purchasers from the defendant of real estate, subject to the mortgage described and referred to in said declaration, had a claim on said defendant for indemnity against liability of the land thus purchased by them against said mortgage. 3rd. That the defendant, fraudulently and with intent to deceive and defraud the plaintiff, failed to give notice according to the provisions of the act of Congress in such case made and provided, to him the plaintiff, to show cause why the discharge and the certificate in the said plea mentioned should not be granted.

The defendant filed two rejoinders to each of these replications--the first, third and fifth being formal traversers of the allegations in the pleas. The second and fourth replications allege that the supposed transfers in first and second replications mentioned, were made before the application of defendant for the benefit of the Bankrupt law. The 6th rejoinder is to the third replication, and alleges that the plaintiff might have shown cause against the discharge without notice, if there had been any. The plaintiff demurred to the 2nd, 4th and 6th rejoinders, but the demurrers were overruled, and judgment rendered for the defendant, to reverse which this appeal is prosecuted.

GOODE, for Appellant.

GEYER, for Appellee.

1. The decisions of the Circuit Court, on the demurrers to the second breach, and to the third plea to the first breach in the original declaration--there being no judgment rendered thereon--are not now the subject of revision; or, if they are, it will be seen that no error was committed by reference to the points made, and authorities cited, on the questions arising on the subsequent pleadings. There is no covenant set out or alleged in the declaration upon which either breach could be assigned in the manner in which the pleader has assigned them. The covenants in law created by the use of the words “grant bargain and sell,” are restrained by the special covenant in the deed; there is, therefore, no covenant against incumbrances, as the pleader supposed, and if there was, that breach is not well assigned in not stating what incumbrances there were, or when created. The first breach alleges generally that the defendant did not defend the premises, without alleging an eviction, or anything equivalent to it. The covenant is of warranty against the claims of all persons generally, and specially against the mortgage. It is therefore a warranty of the title as against the mortgage, as well as against other claims, or a covenant for quiet enjoyment; and in either case, there is no breach until there is an eviction, or at least a disturbance in the possession.

2. The amended count of the declaration sets out the deed in extenso, and the only covenant contained in it is penal, to warrant and defend the lot (that is, the title and possession), against all persons lawfully claiming or to claim the same, in law or equity, and against all titles, liens and incumbrances whatsoever, and particularly against the mortgage in the deed described, forever. No covenant in law is raised by the deed, although it contains the words “grant, bargain and sell;” the express covenant in the deed restrains the covenants which would otherwise arise. A covenant has the same effect, whether created by statute or by the common law; both are covenants in the law--both raised by implication from certain words not in themselves amounting to a covenant; the one being a statutory and the other a common law interpretation of the words, and both laws being of equal potency and of equal obligation, the effect of a covenant in a deed upon the instrument is in both cases the same. The covenants resulting from the words “grant, bargain and sell,” by statute, may be declared on as if expressly inserted in the deed. This is equally true of the covenant raised by the common law on other words. 2 Bac. Abr. title Covenant, B.; Barney v. Keith, 4 Wend. 502. An express covenant of warranty in a deed qualifies and restrains implied covenants, that is, such as are raised by the common law. Vanderkerr v. Vanderkerr, 11 Johns. R 122. So, general express covenants in a deed are restricted by special covenants--as where the land conveyed is described as containing 600 acres, and the grantor covenanted that the tract did contain 500 acres and added also generally a covenant of seizen, it was held that the latter is restrained by the former as to quantity. Whallon v. Kauffman, 19 Johns. R. 97. The same principle is maintained in Fitch v. Baldwin, 17 Johns. R. 161, where a deed contains a covenant of seizen, and a warranty against all claims except the lord of the soil; the two covenants must be taken together, and the exception in the last is applicable to both....