36 F. 577 | U.S. Circuit Court for the District of Eastern Missouri | 1888
Two general questions arise in this case, to which all others are subsidiary. The first is whether complainant has an equitable lien in the nature of a vendor’s lien on the several parcels of real estate described in the bill, and now owned by defendants, because the deed of Mrs. Octavia Boyce, the mother of the defendants, made on April 15, 1867, failed to convey to complainant a fee-simple title to some of the lois described in that deed. The second is whether the defendants are bound by the express covenant of Mrs. Boyce contained in her deed of April 15, 1867, or by any covenant implied in the deed, or that is to be implied from the transaction out of which it arose.
In the case of Barlow v. Delaney, 86 Mo. 584, it was remarked at the close of the opinion that complainant “might have an equitable right to have the lots conveyed by him”, to Mrs. Boyce on April 15, 1867, (contemporaneously with her deed to him,) “charged with a lien for the unpaid purchase price, which would be the value of the lots conveyed by Mrs. Boyce to the complainant at the time of that conveyance.” What was thus said must be regarded merely as a suggestion that such equitable right might exist, rather than a decision that it did exist, inasmuch as the question as to the existence of such a right was not before the court for determination in that case. The learned judge who delivered the opinion evidently had in mind a vendor’s lien, and in making the suggestion very likely acted on the assumption that the transaction between Mrs. Boyce and Mr. Barlow, as set forth in the record then under consideration, had some of the aspects of a sale of real estate. However that may be, the bill in the present case very clearly shows tha. it was not a sale, and that the doctrine of vendor’s lien for that reason is not applicable to the case. The bill shows that in 1867 Mrs. Boyce was in possession of certain real property in the city of St. Louis, . which she had derived title under John Mullanphy, Ann Biddle, and Bryan Mullanphy; and that the complainant, Barlow, had at that time obtained a judgment in ejectment against Mrs. Boyce for an undivided portion thereof. Thereupon, to avoid further litigation, Mrs. Boy^o and Mr. Barlow agreed to an amicable partition of the property in the proportion of twelve-thirtieths to the complainant, and eighteen-thirtieths to Mrs. Boyce; the partition to be effected through the aid of commissioners by them chosen, and by an exchange of deeds, as soon as the commissioners had made the requisite allotment. It was agreed between them that each was legally and equitably entitled to an undivided interest in the property in the proportions above stated, and that after their respective shares had been ascertained and set apart by the commissioners, that deeds should be exchanged to effectuate the partition. Mrs. Boyce agreed to execute a deed containing
It is impossible to regard the transaction between Mrs. Boyce and Barlow as anything more than a voluntary partition of certain lands in which Mrs. Boyce and Barlow owned at the time undivided interests. The agreement recited that each was seized of an undivided interest in the lands, and the manifest purpose was to set apart to each their just proportion, so that they might thereafter hold their respective shares in sev-eralty. It would clearly be a misnomer to call the transaction in question a sale. But even if it could be regarded as a sale, the bill shows that complainant received precisely what he agreed to accept as the consideration for his conveyance to Mrs. Boyce; that is to say, he received a deed conveying all of her interest in the twelve-thirtieths of the land allotted to him, together with such covenants as he had agreed to accept. Even upon the assumption, then, that the transaction in question was a sale, no portion of the purchase money agreed to be paid to the complainant remains unpaid, and there is no foundation for a vendor’s lien upon the lots which he conveyed to Mrs. Boyce, unless it can be maintained that he is entitled to such lien to secure the faithful performance of the covenant made by Mrs. Boyce in the deed by her executed, which is said to have been broken. The question is to be hereafter considered, how far the covenants of that deed, either express or implied, are binding on Mrs. Boyce and her heirs, in view of her having been a married woman; but, waiving that question for the present, I remark that complainant cannot be allowed a vendor’s lien on the lots by him conveyed, to secure the damages resulting from Mrs. Boyce’s breach of covenant, even if the covenants expressed or implied in her deed are valid. The general rule is that, in order to create a vendor’s lien, there must be a debt for unpaid purchase money to a fixed amount, due directly to the vendor. A vendee’s obligation to the vendor on a collateral covenant will not give rise to a lien in favor of the vendor on lauds by him con
Passing to the second branch of the case, the moát important question for consideration is whether the covenant of special warranty made by Mrs. Boyce in her deed of April 15, 1867, operated as a charge on the separate estate that she then owned? As she was a married woman at that time, she had no power to make a contract that could be enforced in a legal proceeding. The covenant that she made, therefore, if it is valid, can only be enforced in equity as a charge upon her separate estate. Rawle, Cov. (5th Ed.) §§ 305-307, and cases cited. From some' allegations of the bill it would appear that the bill was framed partially upon the theory that the transaction between Mrs. Boyce and Mr. Barlow in 1867 was'an exchange of property, and tha,t Mrs. Boyce became bound by a‘covenant such as was once implied in case of an exchange of property. This theory of the case, however, is wholly untenable, as the transaction in question was not an “exchange of property,” but a voluntary partition. Furthermore, Mrs. Boyce’s deed did not contain the necessary words to create an implied covenant such as was formerly implied when an exchange of lands took place. Id. § 270; Gamble v. McClure, 69 Pa. St. 282; 3 Hil. Real Prop. (4th Ed.) 555.
“A husband and wifo may convey the real estate of the wife * * * by their joint deed, acknowledged and certified as herein provided; but no covenant expressed or implied in such deed shall bind the wife or the heirs, except so far as may be necessary, effectually to convey from her and her heirs, all her right, title, and interest expressed to be conveyed therein.”
The case of Bank v. Robidoux, 57 Mo. 446, and the case of Pratt v. Eaton, 65 Mo. 165, unquestionably lend some aid to defendant’s contention, as in eacli of those cases section 669 was held applicable to a married woman’s covenant contained in a joint deed by husband and wife, conveying her separate estate. It is to be observed, however, that in tho case under consideration Mr. Boyce did not join in the deed executed by his wile, and for that reason the covenant contained therein does not fail within the language of the statute. The first paragraph of section 669 refers exclusively to deeds executed jointly by husband and wife, and the last paragraph refers to covenants contained in such deeds as are mentioned in the first paragraph, and to no-other covenants, unless it be by implication. It may bo further remarked that the decisions in Bank v. Robidoux and Pratt v. Eaton, may have been influenced by an opinion which then prevailed to some extent in this state, that a married woman could not convey her separate estate by her sole deed, and that section 669 related to conveyances of a married woman’s separate estate, as well as to conveyances of her general property, in which the husband had a marital interest. That view of the law has lately been expressly overruled in the very record case of Turner v. Shaw, 96 Mo.-, 8 S. W. Rep. 897, in which it is held that a married woman may convey her separate estate by deed, without joining her husband. It would in all probability now he held by the court of last resort (in conformity with the dissenting opinion in Martin v. Colburn, 88 Mo. 235) that section 669 is an enabling act passed to authorize a husband and wife to convey the wife’s general property, and that it has no reference to conveyances of
With reference to the contention that the defendants cannot be proceeded against jointly, and that the action is barred by limitation, and that the defendants, if liable, must be sued at law, rather than in equity, I will say that, after a careful consideration of all those points, my conclusion is that none of them are tenable. If complainant proceeds to charge the defendants with a liability which Mrs. Boyce imposed in equity upon her separate estate by executing the covenant of special warranty, which has been broken since her death, the proceeding is properly brought in equity, and against all of the heirs jointly, and the breach of the covenant occurred so recently that "the proceeding is not barred. Davis v. Smith, 75 Mo. 219.