181 Mo. App. 34 | Mo. Ct. App. | 1914
This is an action for damages for breach of the covenants -of warranty of title, seizin, etc. By their deed, of date December, 1903, one Henson, joined by his wife, conveyed to one A. T. Shead certain lands in Stoddard county, Missouri, on the named consideration of $1000. The deed was the statutory general warranty deed carrying the usual covenants. Afterwards, on January 2,1904, Shead and wife conveyed, the same land to Diggs and Garando, respondents here, plaintiffs below, the deed, an ordinary quitclaim, purporting to convey the premises, to have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging, unto Diggs and Garando, their heirs, etc., forever. The consideration named in this deed is one dollar, receipt of which is acknowledged. The second amended petition, upon which the case was tried, averring the above, avers that at the date of the execution and delivery of these deeds, Henson was not seized of an indefeasible estate In fee simple in the premises but that, on the contrary, at the suit of one Keaton, a deed in the chain of title under which Henson claimed had been adjudged to have been forged and thereby title in Henson failed, title being adjudged in Keaton. Plaintiffs, respondents here, were parties defendant to that action. It is further averred that upon being served in that suit respondents had notified Henson of its commencement and pendency and required him to defend it but that he having failed and neglected to do so, respondents had been compelled, at their own expense, to defend it. All these averments are practically conceded. Henson having died thereafter and his wife having been appointed administratrix of his estate, defendants brought this action against her as administratrix of the estate of her husband, alleging breach of the covenant of warranty, title, etc., claiming the benefit of the covenants in the deed from Henson to Shead, and claiming $1000 damages and
The answer was a general denial, with the further defense pleaded that Henson was not the immediate grantor of and to plaintiffs; that he had sold the premises to Shead and that Shead had conveyed them by quitclaim to plaintiffs for the expressed consideration of one dollar, and that neither Henson, the deceased, nor Shead, had any title whatever, either defeasible or indefeasible, or any possession whatever, either actual or constructive, of, in or to the premises described.
The trial was before the court, a jury having been waived, which resulted in a finding for plaintiffs in the sum of $1000, with interest at the rate of six per cent per annum from the date of institution of this action and for costs. Judgment following, defendant, interposing a motion for new trial and excepting to that being overruled, has duly perfected her appeal to this court.
There are no formal assignments of error, but counsel for appellant makes three points upon which he relies for reversal. Taking up and considering them in their order, the first point made is, that “the rule of damages for breach of warranty in a conveyance of land in case of a total failure of title, is limited in this State to the purchase money paid, with interest thereon and costs; that the recital in the deed from Henson to Shead of a consideration of $1000 is not evidence of the sum paid by plaintiffs to Shead; that in the deed from Shead to plaintiffs, the recited consideration is one dollar and that so far as plaintiffs are concerned, they are third persons as to the recited consideration in the deed from Henson to Shead and the recital in the consideration clause of that deed is not evidence of the amount paid or value of the prem
Johnson v. Johnson, 170 Mo. 34, l. c. 49, 70 S. W. 241, is also cited in the Coleman case as following the Allen case. In the Johnson case it is distinctly held (1. c. 49): “The quitclaim of his grantee could not affect the measure of the liability (of the original grantor) on his covenants and if his grantee has conveyed the property and assigned the covenants which run with the land to . . . defendant, then the latter is entitled to all the benefits arising from them in the same manner as . . . the grantee of the first grantor would have been if he had not conveyed to the defendants. It is not different because the deed to the latter is a quitclaim deed. Such an instrument was sufficient to invest the latter with all the rights of his grantor.”
Applying the rule announced in these cases to the facts here, by the quitclaim from Shead to respondents, the latter became entitled to the benefit of the covenants in the deed from Henson to Shead.
This brings us to consideration of the second point made by the learned counsel for appellant. That counsel claiming that there is' no proof that plaintiffs, respondents here, paid Shead anything for the land except that to be found in the deposition of Shead, and in the testimony of Diggs, argues that as these witnesses were incompetent to prove what plaintiffs paid for the land, it follows that the judgment is without testimony to support it and must be reversed. This point depends for support upon the improper admission of testimony given by Shead and Diggs, as it is claimed, objections having been duly made and exceptions saved to its admission.
We are relieved from consideration of any question as to the payment of the thousand dollars from Shead to Henson. That is admitted. It may be conceded that there is no evidence that respondents paid Shead anything for the conveyance from him to them. It is true that the quitclaim recites a consideration of one dollar and acknowledges the receipt of that, but this is no evidence of the payment of even that sum, and so appellant’s counsel correctly argues in his first point. The question then arises, again turning to the second point, whether there is any legal proof of the connection of Diggs and Garanflo with this conceded payment of one thousand dollars by Shead to Henson. Henson dying before the institution of this suit, it is clear that under the provisions of our statute, respondents, if original parties to the contract, one with whom
In Carroll v. United Railways Co., 157 Mo. App. 247, 137 S. W. 303, we had occasion to discuss the question of the admissibility of the testimony of parties and their agents as arising under the provisions of section 6354, Revised Statutes 1909; more properly, under the proviso to that section, to the effect that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, the other party to such contract or cause of action shall not be admitted to testify. We there held that the conversation sought to be introduced being between the agent of the defendant and the agent of plaintiff, that the agent of the former having died since the conversation, the agent of the latter was not a competent witness to testify as to conversations between him and the agent of the defendant touching that transaction. After reviewing the decisions in our State, which it must be admitted are not entirely consistent, we said (l. c. 286): “The controlling rule we deduce for the construction of this proviso, on consideration of the great weight of decision, to state it briefly, is that not only the letter of the statute but also its spirit must be carefully looked to in its interpretation and so interpreted it excludes the living agent when the agent with whom he negotiated is dead.” But we also said in the same case (l. c. 288): “Our Supreme Court has held in several cases, that while the witness is disqualified from testifying as to
While, this case of Carroll v. United Railways Company, supra, is before us, we call attention to a typographical error in the opinion as published. At page 276, commencing at the third line from the top of that page, this appears: “Darks v. Scudder-Gale Grocer Co., 146 Mo. App. 246, 130 S. W. 430, a decision by the Springfield Court of Appeals, is ruled by that court on the distinct ground that the proviso of the statute relates solely to actions on contracts and does not apply to actions in tort, which was the character of the case before that court.” This is an error. The paragraph should read: “Darks v. Scudder-Gale Grocer Co., 146 Mo. App. 246, 130 S. W. 430, a decision by the Springfield Court of Appeals, is ruled by that court on the distinct ground that the proviso of the statute does not apply solely to actions on contracts and does apply to actions in tort, wMch was the character of the case before that court.
With the quotation from page 288, Carroll v. UMted Railways Company, supra, before us, and referring to the testimony of Shead and of Diggs, we find that some of that of Shead does relate to conversations between himself and Henson touching this transaction. The testimony of Mr. Shead was taken by deposition. When it was offered it was objected to on the ground of his incompetency, Henson being dead. The court admitted the deposition, stating that the objection would be overruled “for the time being.” That part of this testimony which relates to transactions between Shead and Henson should have been ex-
So far as Mr. Diggs, one of the respondents, is concerned, he testified that in the purchase of the land by Shead from Henson, Shead was acting for respond-
We therefore hold that so far as the testimony of Shead is concerned, that part of it which related to the transaction other than had with Henson, was properly admitted, and the admission of other portions of it, while error, was harmless error, the trial being before the court without a jury. It follows from this that
The third point made is that there is no testimony that Shead was acting as the agent of plaintiffs in purchasing the land from Henson, and no evidence that the money Shead paid to Henson for the land was the money of plaintiffs, and no evidence that by inadvertence or oversight the deed was made by Henson to Shead instead of to plaintiffs, except that found in the deposition of Shead and the testimony of Diggs, and it being claimed that the testimony of Shead and Diggs was incompetent as proof or testimony as to these matters, it is argued that the judgment is without testimony to support it. We have disposed of this, by what we have said above, contrary to the contention of the learned counsel for appellant.
That counsel asked several instructions in sup^port of his theory that there was no competent testimony in the case showing any consideration from Shead to respondents or from Henson to respondents. All these were, as we think, properly refused. As we have said above, there was testimony showing that, outside of any incompetent testimony which may have been introduced.
In support of a point made that the position taken by plaintiffs in their second amended petition, the one on which the case was tried, was inconsistent with the position taken by them in the original and first amended petition, those abandoned pleadings were introduced in evidence by defendant. Conceding that they are inconsistent, the matter before the trial court for its determination here was the real fact attendant upon the transaction. Even if these abandoned pleadings are to be treated as admissions by respondents,
The judgment of the circuit court is affirmed.