189 Mo. App. 140 | Mo. Ct. App. | 1915
From a judgment in behalf of defendant in an action for an alleged breach of covenant in a warranty deed from defendants to plaintiff, the plaintiff has appealed. The case of Fischer v. Dent, et al. (the defendants in the case at bar), 167 S. W. 977, decided by the Supreme Court, contains most of the facts material to a decision of this case. The alleged breach of the warranty involved in the present case applies solely to the strip of land two feet in width which was involved in the Fischer case. The plaintiff in the present case alleges the commencement of the Fischer suit, notice to the defendants here to de
The plaintiff urges here as ground for a reversal that the judgment in the Fischer case is not conclusive upon him for the reason that in that case he and the defendants here were not adversaries and that the question of the liability of the defendants here upon their covenant in their warranty deed to him was not and could not be an issue in that case.
I. In the Fischer case plaintiff there alleged the same facts with reference to the conveyance from Hob-son and Seay to Dent as was alleged concerning the conveyance from Fischer to Hobson and Seay. In that case Dent appeared and answered separately alleging his purchase in good faith and his ignorance either of any mistake as to the deed from Fischer to Hobson and Seay or in the deed from them to him. His answer concluded with a prayer that the court determine his title and divest the plaintiff from any claim whatever to any portion of said property. Naturally Hob-son and Seay filed a separate answer denying the material allegations of plaintiff’s petition and alleged that
III. Ignoring the question of res judicata we yet have the following finding of facts by the trial court in the case at bar concerning the deed involved:
“And the court further finds from the evidence that there was a mutual mistake between the parties plaintiff and defendants in the execution of the deed from the defendants to the plaintiff in this, to-wit: That the plaintiff only intended to purchase the small store building and the ground upon which it is situated and extending back thereof, and that the defendants only intended to convey to the plaintiff the small store building and the ground upon which it is situated and*146 extending back thereof. That the plaintiff did not purchase from, the defendants and the defendants did not intend to sell to the plaintiff the two feet of ground upon which failure of warranty is alleged in plaintiff’s petition, and that plaintiff is now in possession of the ground which he bought and intended to buy from the defendants and that there has been no failure of warranty thereon.”
There is ample evidence upon which to base this part of the finding of facts, on this point not being materially different from the Fischer case, and by reason of these facts the plaintiff should not be allowed to recover damages for the alleged loss of land he did not buy and for which he paid nothing. For these reasons the decision of the trial court should not be disturbed.
The judgment is affirmed.