46 Mo. App. 318 | Mo. Ct. App. | 1891
This is an action to recover upon a breach of covenants against incumbrances. On January 6, 1887, defendant Hughes conveyed the property in controversy, by warranty deed, to defendant Singleton, with the covenant that “he is lawfully seized of an indefeasible estate in fee, in the premises herein conveyed ; that he has good fight to convey the same ; that the said premises are free and clear of any incumbrance done or suffered by him or those under whom he claims ;
There is no dispute as to the foregoing facts, and from them we have no doubt of plaintiff’s right to-recover, not merely nominal, but substantial, damages for a breach of the covenant. It appears conceded, and so the trial judge must have decided, by allowing nominal damages, that the passage of the ordinance created an incumbrance on the property. That the covenant against' incumbrances, though technically broken when made, will, nevertheless, run with the land till a substantial breach occurs, was decided, upon full consideration, in
The amount of this liability is ascertained after-wards, but it is covered by the covenant, whatever it may be. It relates back as of the date of the ordinance. It is a settled question in this state that the mere assessment for taxes constitutes an incumbrance for which the covenantor must answer to the covenantee, who pays them, .although the amount of the tax was not ascertained until, perhaps, a year afterwards ; the covenantee in the meantime having had and enjoyed the property. So the argument advanced by plaintiff would apply equally .as well if this was a sewer tax, levied upon a sewer district, instead of á benefit assessment. In such case the incumbrance would exist, and liability would attach to the covenantor, notwithstanding the sewer improvement was put in after the covenantee became the owner.
It was said at the argument that the passage of the •ordinance was not the consummation of the tax, and that in a variety of ways it might never ■ be consummated. This, we can readily grant for present purposes;
As the plaintiff paid $293.90 in discharge of theincumbrance, we will reverse the judgment, and remand the cause, that he may have judgment entered for that sum and interest.