Williamson v. Hall

• Decision Date: 31 May 1876
• Citation: 62 Mo. 405
• Parties: BENJAMIN P. WILLIAMSON, Respondent, v. JEREMIAH HALL, Appellant.
• Court: Missouri Supreme Court

62 Mo. 405

BENJAMIN P. WILLIAMSON, Respondent,

v.JEREMIAH HALL, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Andrew Circuit Court.

William Heren, for Appellant.

The damages can only be the value of the easement.

W. W. Caldwell, with Wm. S. Greenlee, for Respondent.

I. The fact of the incumbrance being known to the purchaser will be no bar to his recovery upon it. (Rawle Cov., 123, 124; Kellogg vs. Malin, 50 Mo., 500, and cases cited; Beach vs. Miller, 51 Ills., 206, and cases cited.)

II. The true rule of compensation in this case is the damage resulting to the estate in its market value from the incumbrance (this is such an incumbrance as the plaintiff or defendant cannot remove). (Wetherby vs. Bennett, 2 Allen, 428; Woodby vs. Ludby, 14 Allen 1.) A just compensation for real injury resulting from continuance of incumbrance. (Harlin vs. Thomas, 15 Pick., 66; Batchellor vs. Storgis, 3 Cush., 201; Hubbard vs. Norton, 16 Comst., 432; 16 Ind., 338.)HOUGH, Judge, delivered the opinion of the court.

On the 27th day of August, 1873, the defendant sold and conveyed to the plaintiff, in fee, “all the north-east quarter of the south-east quarter, of section No. three, Township, No. sixty-one, Range No. thirty-five, forty acres, more or less.” The deed, which was executed by the defendant and his wife, contained, among others, an express covenant, “that the said premises are free and clear of any incumbrances done or suffered by them or those under whom they claim.” On the 25th day of November, 1867, Thomas Vaughan, from whom the defendant acquired title, relinquished to the Missouri Valley Railroad Company, its successors and assigns, a right of way for a railroad fifty feet in width over the tract above described, which has ever since been used by said company and its successors for railroad purposes.

The present suit was brought to recover damages for the breach of the covenant against incumbrances, occasioned by the existence of the right of way in the Railroad Company. There was a verdict and judgment for the plaintiff, from which the defendant has appealed.

It is conceded, that the language of the covenant covered the acts of Vaughan. The defendant acquired Vaughan's entire estate in the land, and his deed to the plaintiff conveys the fee; it is clear that the words “those under whom they claim” refer to those from whom they derive title. They can have no other application. In a covenant against incumbrances done or suffered by the grantor, and all claiming under him, the words “all claiming under him” might and probably would be construed to have a different signification, and would not be held to include a vendee of the entire estate of the grantor.

The plaintiff knew of the construction and operation of the railroad over the land at the time he purchased, though it is uncertain from the testimony, whether he knew that the railroad was rightfully there. The defendant sought to avail himself of the plaintiff's knowledge as a defense, but it has been repeatedly, and we think properly, decided, that knowledge on the part of the grantee of the existence of the incumbrance, at the time the covenant is entered into, will not relieve the covenantor from his liability on the covenant.

In the instructions defining the measure of damages, the court directed the jury in substance...