Wellman v. Dismukes

• Decision Date: 31 October 1867
• Citation: 42 Mo. 101
• Parties: H. C. WELLMAN, ADM'R OF HARVEY WELLMAN, Appellant, v. DISMUKES AND GLASCOCK, Respondents.
• Court: Missouri Supreme Court

42 Mo. 101

H. C. WELLMAN, ADM'R OF HARVEY WELLMAN, Appellant,

v.DISMUKES AND GLASCOCK, Respondents.

Supreme Court of Missouri.

October Term, 1867.

Appeal from St. Louis Circuit Court.

Ewing & Holliday, for appellant.

I. The defense of failure of consideration cannot be set up, as no eviction was shown, and, therefore, no breach of the covenant. (Hoy et al. v. Taliaferro, 8 Sm. & M. 727, 241; Dennis v. Heath, 11 Sm. & M. 206; Rawle, 645, Am. note 1. Even if there was a paramount title in Balthrope, which is not shown, unless there was an adverse possession under it, this is not equivalent to an eviction. (11 Sm. & M. supra, p. 218; Gust v. Hodges, 2 Dev. 200.) The covenant entered into by Wellman was a covenant of warranty; there was no covenant of seizin; the title bond imports nothing more.

II. If there was a defect in the title, it was known to Dismukes, as the evidence clearly shows, and he cannot retain the purchase money or recover what he has paid. His remedy, if he is disturbed in the possession, must be upon the covenant, as in such case he must be considered to have protected himself against the defect by the covenants in the title bond. The presumption is that the covenant was expressly taken for protection against it. The purchaser shall be bound to perform his engagements whenever his knowledge and the state of facts continue to be the same as they were at the time of the conveyance. (Bradford v. Potts, 9 Barr. 37; Juvenal v. Jackson, 2 Harr. 519; Lighty v. Shorb, 3 Penn. 447; 13 Levy & R. 386.)

III. The court manifestly erred in (on its own motion) substituting Glascock as defendant without allowing plaintiff to reply. Such an order at that stage of the case was irregular and improper in itself; but, having been made, plaintiff should have been allowed to plead as to this new party, and to show, if he could, that Glascock was not entitled to a judgment against him.

IV. The defendant having recovered damages for the breach of the covenant (being the amount of the purchase money, with interest), on the ground that Wellman had no title whatever, the grantee is estopped from setting up the deed afterward as a conveyance of the land against the grantor. The grantor, Wellman, or his representatives have the right to enter again, as against the grantee and his assignee or vendee, and hold under their former possession. (Parker v. Brown, 15 N. H. 176, 188.)

Dryden & Lindley, for respondents.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff, as administrator of Harvey Wellman, deceased, instituted suit in the Ralls county Circuit Court against the defendant, Dismukes, on two promissory notes made by Dismukes and payable to plaintiff's intestate. It appears from the petition that the plaintiff's intestate sold to the defendant, Dismukes, certain tracts of land described therein, and bound himself by title bond to convey said lands to Dismukes on the payment of the purchase money. The price agreed upon for the land was four thousand dollars, to be paid in three equal annual installments, the first of which was paid; and this suit was brought to enforce the collection of the two deferred payments.

The petition prays for judgment on the notes, and also for the enforcement of the vendor's lien.

Dismukes, in his answer, admits the making of the notes, and the consideration for which they were given, as charged in the petition, but sets up as a defense that, at the time the land was sold to him, the intestate had no right, title, interest, or estate, whatever, in the said lands, and that his representatives since had acquired none, and that no title could be conveyed by said intestate's representatives on payment of the balance of the purchase money. He further alleged that the whole title in the lands was in one Mrs. Balthrope, a married woman, for life, and remainder in fee, in her seven children, several of whom were minors, and prayed for a recision of the contract and for judgment for the sum paid by him to the plaintiff's intestate. The plaintiff filed a replication to the counter claim or cross bill set up in defendant's answer.

During the progress of the trial, it appeared that one Glascock had bought at sheriff's sale all the interest of Dismukes in the land in controversy, and that after the institution of this suit Dismukes had assigned and transferred to him all his interest in the same, including whatever claim he might have against the estate of the intestate for the money already paid.

After all the evidence was submitted, and before judgment, the court amended the pleadings by making Glascock a party, who immediately entered his appearance and consented to the proceedings.

The court then, sitting as a jury, found that the intestate was not the owner of nor seized of the land described in plaintiff's petition, and in the title bond given by the said Wellman, deceased, to Dismukes at the date of the said title bond, and that neither his heirs nor representatives had acquired any title since; that at the date of the said title bond the title to the real estate was and ever since has been and now is vested in Mrs. Balthrope for life, with remainder to the heirs of her body in fee; that Mrs. Balthrope was the mother of seven children,...