Staed v. Rossier

• Decision Date: 02 May 1911
• Citation: 137 S.W. 901,157 Mo. App. 300
• Parties: STAED v. ROSSIER et al.
• Court: Missouri Court of Appeals

137 S.W. 901

157 Mo. App. 300

STAED v. ROSSIER et al.

St. Louis Court of Appeals. Missouri.

May 2, 1911.

Rehearing Denied June 6, 1911.

1. COVENANTS (§§ 67, 79)—COVENANTS RUNNING WITH THE LAND—"GRANT, BARGAIN AND SELL."

Under Rev. St. 1909, § 2793, providing that the words "grant, bargain and sell" in conveyances shall be construed as covenants that the grantor was seized with an indefeasible estate in fee, free from incumbrances, and for further assurances, such words create covenants of warranty which run with the land, and a subsequent grantee may sue thereon.

2. COVENANTS (§ 130)—BREACH OF WARRANTY—MEASURE OF DAMAGES.

The measure of damages for breach of covenants of warranty recoverable by a purchaser of the grantee, is the value of the land at the time of his purchase, but his right to recover against the original grantor must be limited to his actual loss and cannot exceed the liability of the original grantor to his immediate grantee.

3. EVIDENCE (§ 419)—PAROL EVIDENCE—ACTUAL CONSIDERATION OF DEEDS—DAMAGES.

Though evidence to contradict the consideration clause in a deed to defeat the conveyance as such, is inadmissible in the absence of fraud, the consideration clause, being only prima facie evidence of the amount therein named, the actual consideration may be shown to determine the damages for breach of covenant in the conveyance.

4. COVENANTS (§ 130) — BREACH OF COVENANTS—MEASURE OF DAMAGES.

A grantor with covenants of warranty of seizin against incumbrances and for quiet enjoyment, received $1,000 cash and a note for $4,500 secured by deed of trust. The grantee conveyed to a third person for $6,500, who took subject to the $4,500 incumbrance, on which he had not paid anything except interest. The third person was ejected for defect in title. Held, that he could recover from the grantor only $1,000 with interest from the date of his eviction.

5. COVENANTS (§ 130) — DEFECTIVE TITLE — MEASURE OF DAMAGES.

Where a purchaser was in possession until his eviction under a superior title, the rents are an offset to interest, and he may not recover interest on the amount paid prior to eviction.

6. APPEAL AND ERROR (§ 1175)—DISPOSITION OF CASE ON APPEAL.

The court on appeal from a judgment awarding excessive damages for breach of covenants in a deed may not render judgment against defendant for the amount admitted by him to be the measure of damages, though such amount is the correct measure of damages, but it must reverse and remand with directions.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Patrick J. Staed against Joseph Rossier and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.

Johnson, Rule & Allen and Henry W. Allen, for appellants. Daniel Dillon and Paul Dillon, for respondent.

REYNOLDS, P. J.

This is an action in which plaintiff seeks to recover from defendants damages for breach of the covenant of warranty contained in a certain deed dated December 10th, acknowledged December 11th, 1906, by which deed they conveyed to Richard H. and Agnes R. Ashby, husband and wife, a certain lot in the city of St. Louis, Ashby and wife having conveyed the same property to plaintiff by their general warranty deed, dated May 7, 1907.

It is averred in the petition upon which the case was tried that the conveyance from defendants to Ashby and wife was on consideration of $5,500, and that by their deed, defendants covenanted and agreed that they, their heirs, executors and administrators would warrant and defend the title to the premises unto Ashby and wife and unto their heirs and assigns forever, against the claims and lawful demands of all persons whomsoever. It is further averred that Ashby and wife took possession of the premises under and by virtue of the deed and executed and delivered a deed of trust, conveying the property to a trustee, to secure the payment of a principal note for $4,500 and six interest notes, each for $112.50, it being averred that all of the notes are owned and held by defendants; that afterwards on May 7, 1907, Ashby and wife sold the property to plaintiff, subject to the aforementioned deed of trust, for the price and sum of $2,100 cash then and there paid by plaintiff and that Ashby and wife had thereupon executed and delivered to plaintiff their deed conveying the title to plaintiff and that under that deed plaintiff took possession of the lot and held possession until dispossessed. It is further averred that neither of defendants had or owned or held the title to the piece of land or any part of it at the time they sold the same to the Ashbys or at any other time, and that the Ashbys had never owned or held title to the land or any part of it. It is further averred that plaintiff, with others, was sued in the circuit court of the city of St. Louis, by the persons who own and hold the title to the land, to establish their title thereto; that defendants were notified of the suit and defended it and that the court rendered a judgment and decree to the effect that plaintiffs in that suit were the owners and holders of the title and that plaintiff in this suit and those claiming title under the deed from defendants and the Ashbys had no title to the land; that afterwards a suit in ejectment was commenced in the circuit court of the United States for the Eastern Division of the Eastern Judicial District of Missouri, by certain parties against a tenant of plaintiffs for an undivided 281/360 of said land, and that it was determined in said suit that the defendant therein (plaintiff's tenant) had no title to the land and final judgment was entered in favor of plaintiffs; that under a writ of possession issued on said judgment, he (plaintiff in this suit) was, on January 6, 1909, evicted from said land and dispossessed and deprived of the possession thereof by the plaintiffs in that suit. It is further averred that plaintiff employed counsel and defended the suit in the circuit court of the city of St. Louis at a cost and expense of $150 and that before he was aware that defendants had no title to the property when they had sold it to the Ashbys, plaintiff had paid to defendants three of the interest notes secured by the deed of trust, each for $112,50. Averring that defendants have not kept or observed their agreement and covenant to warrant and defend the title to the land as contained in their deed to the Ashbys but have failed to do so to his damage, plaintiff demands judgment for $2,100 for breach of the covenant, interest on that amount at 6 per cent. per annum from May 8, 1907, $150 for his expense in defending the suit and $337.50, the amount of the three interest notes paid to defendants as aforesaid, a total demand of $2,788.50, with interest on the same from date of institution of the suit and for costs. The suit was instituted January 14, 1909.

The answer was a general denial.

The trial was before the court, a jury having been waived. The deed from defendants Rossier and wife to Ashby and wife was in evidence, and is in the statutory form of a general warranty deed as prescribed in this state and purports "to be in consideration of the sum of $10 and other valuable considerations to them paid by the said parties of the second part, the receipt of which is hereby acknowledged." It was in evidence at the trial and not disputed that the real consideration was $1,000 cash paid to defendants and the principal note for $4,500 and the interest notes above referred to therein, executed by Ashby and wife to defendants. The petition avers that defendants are the present owners of this $4,500 note, and that seems to have been conceded at the trial. The deed from the Ashbys to plaintiff Staed is not in the abstract of the record and we are not advised whether any mention was made in it of the deed of trust, but plaintiff testified that he bought subject to the deed of trust. Transcripts of the record of the two actions above referred to were introduced in evidence, establishing the averments of the petition with respect to the purpose and outcome of those two actions. There was evidence that the property, the lot in question, had been taken possession of on January 6, 1909, under the writ of possession issued in the ejectment suit above referred to against plaintiff's tenant, the United States Marshal stating in his return that he had taken possession under the writ of 20/45 and on that date turned over its possession to the attorney for the plaintiffs in that action, that attorney testifying that he had then taken possession of the entire property under the decree rendered by the state court in the suit to quiet title, he holding possession for his clients from that date apparently to the trial of this action. So that on that date, January 6, 1909, plaintiff Staed was ousted from possession of the entire property and has ever since been out of possession.

A witness introduced on behalf of plaintiff and who had been the agent of Mr. Rossier, testified that when the property was sold to plaintiff Staed and he received a deed to it, he had taken the property subject to the $4,500 incumbrance before mentioned, and that as the interest notes fell due plaintiff had paid some of them. It was further in evidence that the suit to quiet title at the time of this trial was pending on appeal in the Supreme Court of this state, the plaintiff, however, who had been one of the original parties to the suit and had joined in the appeal dismissing his appeal. A stipulation as to title which had been entered into on the trial of one of the cases above referred to was also read into this record. It is not necessary to set it out in full, it being sufficient to say that it tended to show that neither the original grantors, defendants here, nor their grantees, the Ashbys, who were grantors of this plaintiff, respondent here, had any title to the premises. At least that is the way we understand this record. The...