Talbert v. Grist

• Decision Date: 28 January 1918
• Citation: 201 S.W. 906,198 Mo.App. 492
• Parties: LUTHER TALBERT et al., Respondents, v. GEORGE GRIST, Appellant
• Court: Kansas Court of Appeals

201 S.W. 906

198 Mo.App. 492

LUTHER TALBERT et al., Respondents, v. GEORGE GRIST, Appellant

Court of Appeals of Missouri, Kansas City

January 28, 1918

Appeal from Schuyler Circuit Court.--Hon. N. M. Pettingill, Judge.

AFFIRMED.

Judgment affirmed.

C. C Fogle and R. E. McKee for appellants.

Campbell & Ellison and Rolston & Rolston for respondents.

OPINION

BLAND, J.

On October 13, 1894, Sarah E. Wales purchased and owned in fee simple the title to the south half of Block Fourteen (14) Colorado City, otherwise described as Lots Four, (4), Five (5), Six (6), Seven (7), Eight (8) and Nine (9) in Colorado City, Schuyler County, Missouri. The property was afterwards taken into the village of Greentop. Sarah E. Wales died intestate owning this property, leaving her husband, George W. Wales, her sons, John P. Wales and Harry Wales, and a grandson, Virgil Fowler, as her sole and only heirs. George W. Wales moved to Iowa and took with him his sons. The taxes upon the land became delinquent, the property was afterwards sold for the same and a sheriff's deed was made on May 11, 1903, conveying the property to defendant, George Grist. This tax deed was void and conveyed no title to said Grist. George Grist conveyed these lots by a warranty deed, regular in form, dated May 18, 1903, to Wallace Wilson, who took possession of the premises under such deed, claiming in good faith the title thereto. By a warranty deed regular in form, dated June 29, 1908, Wallace Wilson and his wife conveyed the property to the Greentop Telephone Exchange and its successors. This company was an unincorporated company and there was evidence that it was intended that it should become a corporation. Said company (or the members composing it) likewise went into the possession of the property and claimed in good faith the title thereto under said deed. By a warranty deed, regular in form, dated February 12, 1913, the Greentop Telephone Exchange by Luther Talbert, James Young and R. W. Hart, directors, conveyed the property to Harry A. Buchanan and Frank B. Farrington, who went into possession thereof claiming in good faith the title thereto, and on February 16, 1915, Buchanan and Farrington and their wives conveyed to plaintiffs Lots Four (4), Five (5), Six (6), Seven (7) and a portion of Lot Eight (8), being in the south half of Lot Fourteen (14), of Colorado City; the latter likewise went into possession thereof claiming, in good faith, the title thereto.

On February 16, 1915, the heirs of Wallace Wilson, claiming through him brought a suit against the Greentop Telephone Exchange and Talbert, Young and Hart, its directors, and Buchanan and Farrington to try the title to said property. The answer in said suit set up that the Greentop Telephone Exchange purchased the property from Wallace Wilson and wife, who, by their warranty deed and in consideration of six hundred and fifty ($ 650) dollars, conveyed said premises to the Greentop Telephone Exchange and its successors, and that said Greentop Telephone Exchange by its directors, Talbert, Young and Hart, by a warranty deed, and in consideration of six hundred ($ 600) dollars, thereafter conveyed the property to Buchanan and Farrington. The court by its judgment in said suit, apparently rendered on the same day that the suit was filed, found the title to the property to be in said Buchanan and Farrington.

On August 23, 1915, the heirs of Sarah E. Wales brought suit against Buchanan and Farrington and Virgil Fowler, the latter being a minor heir of said Sarah E. Wales, asking the court to determine the title to the property claimed by the defendants therein, as provided in section 2535, Revised Statutes 1909, and on August 31, 1915, said heirs of Sarah E. Wales, deceased, brought a like suit against these plaintiffs, the Greentop Telephone Exchange, and other persons, asking the court to try the title to the property conveyed by Buchanan and Farrington to these plaintiffs as aforesaid. Before these suits were tried a guardian ad litem was appointed for the minor defendant, Virgil Fowler. Thereafter the defendant herein was served with notices signed by these plaintiffs Greentop Telephone Exchange, and Buchanan and Farrington, notifying this defendant that said suits had been brought and requesting that this defendant come in and defend the title as he was required to do by virtue of the covenant and warranty contained in his said deed to Wallace Wilson, dated May 18, 1903. This defendant failed to appear or defend these suits but the defendants therein filed their answers and on a trial judgments were rendered therein that the plaintiffs and defendant, Virgil Fowler, were entitled to the property subject to the improvements, and that "certain improvements were put on said lots by said defendants, in good faith, and without any knowledge on their part of any title or claim to said lots on the part of said plaintiffs and Virgil Fowler, and while said defendants were holding and claiming the said lots, adversely to said plaintiffs and Virgil Fowler." That the value of said lots, without such improvements, including, rents accrued was nine hundred and seventy-five ($ 975) dollars, and that the value of said lots, including said improvements was four thousand, eight hundred and seventy-five ($ 4875) dollars. The court then ordered that upon the payment of nine hundred and seventy-five ($ 975) dollars to plaintiffs and Fowler, defendants should have and hold the fee-simple title to said lots, and said payment was so made.

On January 4, 1917, this suit was brought by plaintiffs for damages incurred by reason of said suits brought against these plaintiffs and Buchanan and Farrington (plaintiffs being the assignee of the latter's claim) for breach of this defendant's covenant and warranty as contained in his said deed to Wallace Wilson. The cause was tried before the court and judgment was rendered in favor of plaintiffs, and defendant has appealed.

Defendant's first point is that plaintiffs had no right to sue upon defendant's covenant and warranty contained in his deed to Wallace Wilson, for the reason that the Greentop Telephone Exchange was an unincorporated company and that the conveyances by Wilson to it and from it to Buchanan and Farrington were void. To support this contention defendant relies upon Douthitt v. Stinson, 63 Mo. 268; Reinhard v. The Virginia Land and Mining Co., 107 Mo. 616, 18 S.W. 17, and The White Oak Grove Benevolent Society v. Murray, 145 Mo. 622, 47 S.W. 501. These cases sustain defendant's contention that the deeds from Wilson to the Greentop Telephone Exchange and from the latter to Buchanan and Farrington were void. Nor can persons dealing with such a company be estopped to deny its existence as a corporation. The general rule is that where a person has contracted and dealt with another as a corporation, that he and his privies will be estopped, in a proceeding wherein such dealings are an issue, to deny the existence of the corporation. This rule does not extend to a case where no charter has been obtained from the Secretary of State and there has never been an intention to obtain such a charter. [Elliott v. Sullivan, 156 Mo.App. 496, 137 S.W. 287; Douthitt v. Stinson, supra; Reinhard v. The Virginia Land and Mining Co., supra; The White Oak Grove Benevolent Society v. Murray, supra; Bradley v. Reppell, 133 Mo. 545; West Missouri Land Co. v. Railway Co., 161 Mo. 595, 61 S.W. 847.] However, we do not believe that the fact that those deeds were void deprives plaintiff in this case of the right to sue on the covenant of indefeasible seizin contained in defendant's deed. As before stated on February 16, 1915, the heirs of Wallace Wilson (Wallace Wilson was defendant's grantee in a deed the validity of which is not disputed) brought suit against the Greentop Telephone Exchange and Buchanan and Farrington. There was a final judgment rendered in that case which, in effect, determined that all the interest of Wallace Wilson or his heirs in the land was then owned by Buchanan and Farrington. This judgment was binding on the parties therein and their privies whether or not the court rendered the same on erroneous conclusions of law, and the parties thereto and their privies were not in a position to thereafter urge that the deeds from Wilson to the Greentop Telephone Exchange and from the latter to Buchanan and Farrington were void deeds. The loss having fallen upon these plaintiffs the covenant in defendant's deed inured to them. [Dickson v. Desire's Adm'r, 23 Mo. 151; Iowa Loan and Trust Co. v. Fullen, 114 Mo.App. 633, 91 S.W. 58.]

The words, "grant, bargain and sell" used in a warranty deed are, under section 2793, Revised Statutes 1909, covenants of warranty and for quiet enjoyment, and against incumbrances as well as of seizin, which run with the land, and that they may be sued upon by any subsequent grantee who sustains a loss by failure of or defect in the title, has been settled by many decisions of our courts. [Staed v. Rossier, 157 Mo.App. 300, 137 S.W. 901, and cases therein cited.]

It is said in Allen v. Kennedy, 91 Mo. 324, 2 S.W. 142:

"As to the covenant of seisin of an indefeasible estate in fee-simple, the claim is, that this covenant, if broken at all, is always broken when made, and does not run with the land. Whatever may be the rule elsewhere, with us it is more than a covenant in the present tense. It is rather a covenant of indemnity, and it has often been held that it runs with the land to the extent that if the covenantee takes any estate, however defeasible, or if possession accompanies the deed, though no title pass, yet, in either event, this covenant runs with the land and inures to the subsequent grantee, upon whom the loss falls. [Dixon v. Desire, 23 Mo....