80 Mo. App. 339 | Mo. Ct. App. | 1899
On April 10, 1890, William J. Clark and wife executed and delivered to Arch D. Coleman, a conveyance granting to Coleman, by the words “grant, bargain and sell, convey and confirm,” the following described real estate situated in Mississippi county, Missouri, to wit, northeast quarter of northeast quarter of section thirty-three, township thirty-six, range sixteen. When Coleman attempted to take possession of the land he found one M. A. Drane in possession of a strip of about four acres of the land on one side of the tract, claiming the fee simple title thereto. Coleman instituted suit by ejectment against Drane for possession of the strip. Coleman was successful in the suit and recovered a judgment for possession. Drane appealed to the supreme court, where the judgment was on a hearing affirmed. Under a rule of the supreme court (read in evidence on the trial), Coleman was required to have his brief printed for which he paid $10. He also employed an attorney to prosecute his suit, to whom he paid $40. The attorney’s fee and printer’s bill were both reasonable. Eor the recovery of these amounts (printer’s bill and attorney’s fee), this suit was begun in the circuit court. The petition alleges in substance that Clark committed a breach of his covenant of seizin, and that Coleman was compelled to pay out and did pay out $50, to obtain possession of the land. Clark was notified of the adverse
II. A further contention made by appellant is that there was no failure of title, and hence no breach of the covenant of seizin. Seizin is of two kinds, seizin in law, and seizin in deed. A covenant of seizin implies that the covenantor is possessed of both, that is of the whole legal title, and the
III. On account of the following concluding clause in the deed, to wit: “To have and to hold the same with all the rights thereto belonging, hereby covenanting that we and our heirs shall and will warrant and defend the title to the premises hereby conveyed against the lawful claims of all persons whatever,” it is contended that the covenants implied by the words “grant, bargain and sell,” are restricted to “lawful claims.” The habendum clause of the deed does not refer to nor is it connected with the granting clause, and hence does not qualify nor restrict the covenants created by the words “grant, bargain and sell.”