Waldermeyer v. Loebig

• Decision Date: 13 July 1909
• Citation: 121 S.W. 75,222 Mo. 540
• Parties: WALDERMEYER v. LOEBIG.
• Court: Missouri Supreme Court

121 S.W. 75

222 Mo. 540

WALDERMEYER v. LOEBIG.

Supreme Court of Missouri, Division No. 2.

July 13, 1909.

1. COVENANTS (§ 14) — CONSTRUCTION — "GRANT, BARGAIN AND SELL."

The words "grant, bargain and sell," in a deed purporting to convey an estate in fee, have, under Rev. St. 1899, § 907 (Ann. St. 1906, p. 838), the effect of a covenant that the grantor is seised of an indefeasible estate in fee, but unless the deed purports to convey an absolute estate in fee the words mean only a transfer of the estate.

2. DEEDS (§ 90) — CONSTRUCTION — INTENTION OF PARTIES.

A deed must be construed as a whole to ascertain the intention of the grantor and effectuate it, unless a positive rule of law will be infringed thereby.

3. DEEDS (§ 99) — CONSTRUCTION — INTENTION OF PARTIES.

An instrument referred to in a deed is a part thereof, and the two become one in determining the intention of the grantor.

4. COVENANTS (§ 27) — PARTIES — CONSTRUCTION — WARRANTIES.

A deed of trust recited that the widow of decedent and the curator of his minor heirs, the curator acting under an order of the prebate court authorizing him to borrow on the property of the minors, "granted, bargained and sold" land described, and stipulated that the grantors covenanted that they were seised of an indefeasible estate in fee. The order of the court was based on a petition averring that the minors owned the premises, and that the widow was willing to join in the deed, pledging her dower interest to secure the money borrowed. Held, that the widow merely released her dower interest, without warranting that she had an indefeasible estate in fee.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Henry Waldermeyer against Theresia Loebig. From a judgment for defendant, plaintiff appeals. Affirmed.

Block & Sullivan, for appellant. Rassieur & Buder, for respondent.

GANTT, P. J.

The learned counsel for the plaintiff very aptly denominates this cause as the aftermath of Waldermeyer v. Loebig, 183 Mo. 363, 81 S. W. 904. The petition in the present case filed December 19, 1904, declared for the breach of covenants of title alleged to have been contained in the deed of trust which was before the court upon other considerations in that case. The petition in substance alleges that the defendant, Mrs. Loebig, the widow of John Loebig, deceased, and one D. Ind. Neudorf, in February, 1897, in consideration of a loan of $7,000 then made by the plaintiff, and to secure the same, executed to William F. Woerner, as trustee, their deed of trust upon certain premises, to wit, the same real estate which was involved in Waldermeyer v. Loebig, 183 Mo. 363, 81 S. W. 904; that by said deed of trust Mrs. Loebig and Neudorf undertook to convey a fee-simple estate, and made use of the words, "grant, bargain and sell," to convey the same; that they thereby covenanted to and with the trustee, his successors in trust and assigns, and for and in behalf of the plaintiff as beneficiary in said deed of trust, that they were at the time seised of an indefeasible estate in fee simple in the premises; that the trustee sold the premises under the powers contained in the said deed of trust upon a default occurring thereunder, and, the plaintiff having become the purchaser at this sale for the full amount of his debt and interest, the trustee conveyed the said premises to him, and thereby assigned to the plaintiff the covenants in said deed of trust. It was also alleged that the trustee had subsequently assigned all rights of action on the covenants in the deed of trust to the plaintiff. The petition then averred that no title whatever passed by the deed of trust; that the plaintiff had sued defendant and others in ejectment for possession of the premises, under his purchase thereof; and that judgment had gone against him in the action. Also that he had instituted the action of Waldermeyer v. Loebig, 183 Mo. 363, 81 S. W. 904, seeking subrogation to mechanics' liens upon said premises which his loan had been used to discharge, and that as the final result of that action of this court it was adjudged that the deed of trust passed no title to the premises. It was then alleged that the premises had at all times been of the value in excess of $15,000, and that the plaintiff's loss was his debt of $7,000, interest thereon subsequent to February, 1899, and $2,000 expenses in the prosecution of the two actions pleaded. An abatement of $6,000 was admitted from the amount claimed because of the collection by the plaintiff of that sum from the estate of D. Ind. Neudorf upon the same covenants. The prayer of the petition was for a judgment for $5,100 and interest. The answer was a general denial with certain specific defenses: First, that defendant had no interest in the premises save as dowress, and that she only joined in the deed of trust to subject her dower thereto; that the money was loaned to Neudorf, the other party to the deed; and that the plaintiff at the time he made the loan knew all the foregoing facts. Second, that after a default in the deed of trust the trustee sold and conveyed the premises to the plaintiff thereunder in consideration of a sum bid by the plaintiff therefor in excess of his debt, which excess the plaintiff paid to the trustee; and that the notes held by the plaintiff for the loan were canceled, whereby the defendant deducted the conclusion that both the debt and the deed of trust were satisfied, and that no recovery could be had in consequence upon any covenant therein contained. Third, that in Waldermeyer v. Loebig, supra, it was adjudicated by the other division of this court that Mrs. Loebig was not bound by any covenant in the deed of trust. Fourth, that plaintiff had previously sued the executrix of D. Ind. Neudorf's estate on the same covenants, and that the parties to that action had agreed upon a judgment in plaintiff's behalf, fixing his damages at $6,000, and that such a judgment was entered in his behalf in that action and paid. The reply admitted the settlement pleaded with the executrix of Neudorf, and alleged that in making it the plaintiff had expressly reserved his right to prosecute his action against Mrs. Loebig for full satisfaction of all his damages sustained by the breach of the covenants. The jury was waived, and the cause tried to the court, which resulted in a finding for the defendant and judgment accordingly, from which the plaintiff appealed.

The undisputed facts in this case are fully stated by Judge Marshall, in so far as they existed at the time he wrote the opinion in 183 Mo. 363, 81 S. W. 904, but for an intelligent understanding of the present case it is deemed necessary to repeat some of the facts which appear in that report. John Loebig in his lifetime owned the premises in controversy, which are situated on South Broadway in the city of St. Louis. There was upon them in his lifetime a three-story brick building, the lower floor of which he used for business purposes, the second floor for a residence for his family, and the third floor he let out for other purposes. The St. Louis cyclone of 1896 damaged the premises quite materially, and Loebig died shortly after that time, leaving them in a damaged state. He left no will, and his surviving family consisted of the defendant, his widow, and three infant daughters. D. Ind. Neudorf became administrator of his estate and curator of his three minor children. Neudorf contracted for and made extensive repairs and improvements on these premises. He and the defendant, Mrs. Loebig, agreed with each other that preliminary to the settlement of the liabilities thereby incurred the parties holding the claims should prove the same against Loebig's estate in the probate court, and this was done. Neudorf thereupon, as curator for the three daughters, addressed his petition to the probate court for leave to borrow $7,000 by the execution of a deed of trust on the premises for the purpose of discharging these claims. In this petition he stated that the defendant was willing to join in the deed of trust in order to subject her dower interest in the premises thereto. The probate court granted the prayer of the curator, and authorized him to execute the deed of trust. Thereupon he and Mrs. Loebig executed the deed of trust, and the plaintiff loaned $7,000 on the faith of it for three years at 6 per cent. interest. As the liability of Mrs. Loebig depends in a large measure upon the terms of this deed of trust, it is deemed essential to copy the granting part thereof, omitting a description of the premises conveyed:

"This deed made and entered into this fifteenth day of February, eighteen hundred and ninety-seven, by and between Theresia Loebig, widow of John Loebig, deceased, and D. Independence Neudorf, curator, acting herein by virtue of and under an order of the St. Louis probate court, made at the December term, 1896, thereof authorizing said curator to borrow $7,000 on the property of said minors, of the city of St. Louis, and state of Missouri, parties of the first part, and William F. Woerner, of the same place, party of the second part, and Henry Waldermeyer, of the same place, party of the third part, witnesseth: That the said parties of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to them paid by the said party of the second part, the receipt of which is hereby acknowledged do by these presents, grant, bargain, and sell, convey and confirm unto the said party of the second part, forever, all the following described real estate, situated in the city of St. Louis and state of Missouri, and known and described as follows, to wit:" (Here follows a particular description of the premises.)

The habendum reads as follows:

"To have and to hold the same, together with the appurtenances, to the said party of the second part and to his successor hereinafter designated, and to the assigns of him and of...