192 Mo. App. 697 | Mo. Ct. App. | 1915
Respondent, plaintiff below, brought her action against the defendant, now appellant, to recover damages for breach of covenants of warranty of title to a certain lot in Malden, Dunklin county, this State, known as the east half of outlot number twenty, in that city, conveyed to her and her husband by defendant by a general warranty deed. Averring that her husband had since died and that the title had vested in plaintiff, she avers that she had entered into possession of the premises, and in June, 1907, had relinquished possession thereof to certain parties, here, for brevity, designated as “the Haynes heirs,” they claiming by an older and better title and on which, on April 1, 1905, they had brought an action in ejectment against this plaintiff to recover possession of the lot, of which action defendant here had due notice and opportunity to defend and did in fact enter his appearance for the purpose of defending, but had failed and neglected to make any defense therein; that the Haynes heirs, having a better title to the premises, they there
The answer, after a general denial, pleads the Three-year and Five-year Statute of Limitations.
The fact of filing the action in ejectment by the Haynes heirs against the plaintiff as alleged, was in evidence, the petition describing the lot and asking for possession and damages. It was in evidence that defendant had been notified of the pendency of the action and had employed the counsel who conducted the defense therein in the name of Mrs. Eaker, and while it was conceded that judgment had been rendered against this plaintiff in that action, it appeared that the judgment omitted any description of the premises. It is also in evidence that, purporting to act under an execution or writ of restitution which was issued in the action of ejectment in favor of the plaintiffs therein and against this plaintiff, the sheriff of the county, some time in June, 1907, with the execution or writ of restitution which had been issued under that purported judgment, had gone to this plaintiff and demanded possession of the premises in behalf of the Haynes heirs, plaintiffs in the ejectment, and that thereupon plaintiff had surrendered the possession of it to him and that the Haynes heirs had been in possession of it until they subsequently sold it to another party and that plaintiff in this action had never been in possession of it since June, 1907. It was also in evidence that the defendant herein, an attorney at law, had, in connection with another attorney, rendered services for the Llaynes heirs and possibly their father, in the United States Circuit Court, as it then was, for which a fee
The records of the probate court authorizing the guardian and curator of the Haynes heirs to make the note and deed of trust were in evidence.
It is recited by the guardian and curator in the petition on which the above order was made by the probate court, that there was pending in the United States Circuit Court an action in attachment against all the real estate of the minors, seeking to subject it to alleged indebtedness of their father; that unless that action was properly defended the property of the minors would be sacrificed; that Thomas B. Harvey, an attorney, had been retained to defend the litigation and the fee agreed to be paid him was $300; that this attorney demanded that the payment of this fee be secured by-deed of trust upon the east half of outlot number twenty in the city of Malden; that the curator believed and is advised that the interests of the minors (Haynes heirs) require that such deed of trust be executed and he prayed for an order of court authorizing and empowering him to execute a note in the sum of $300, payable to the order of Harvey, due twelve months after date and for an order empowering him to execute and deliver to Harvey a deed of trust on the lot securing payment thereof. Afterwards alleging that a mistake had been made as to the amount of the fee, the guardian
It was also in evidence that after Mrs. Eaker had been dispossessed or had surrendered possession of the premises, Mr. R. P. Williams, who was the attorney associated with Mr. Harvey in the suit in the United States Court, and who, representing Mr. Harvey, had employed the firm of attorneys who defended the action of ejectment, went to the county seat of Dunklin county and examined the record and files in the ejectment action and then discovered the form of the judgment which had been rendered in that action, and returning to St. Louis advised Mr. Harvey that in his opinion that judgment was void.
This is practically all the material evidence in the case.
At the conclusion of the trial, which was before the court, a jury having been waived, the court, at the instance of plaintiff, gave three declarations of law.
It also gave three declarations of law at the instance of the defendant.
We do not think it necessary to set out any of these here, but shall hereafter set out the substance of the third declaration given at the instance of plaintiff, upon which defendant particularly assigns error.
Defendant also asked a declaration of law to the effect that if the court, sitting as a jury, found from the evidence that at the time plaintiff delivered pos
Defendant further asked the court to declare as a matter of law that under the evidence in the case, the verdict and judgment should he for defendant. These were refused.
Defendant'objected and excepted to the refusal of these declarations and to the giving of those asked by plaintiff.
The court found for plaintiff and entered up a judgment in her favor in the sum of $100, with interest from January 3d, 1903, amounting to $238.10, an aggregate of $638.10. From this the defendant, his motion for a new trial overruled, duly appealed.
Learned counsel for appellant assign four grounds why this judgment should be reversed and judgment he here entered for defendant.
First, that this being a suit for breach of covenant of warranty and plaintiff having been put in possession by defendant, she could not voluntarily yield up the possession to the detriment of the defendant without legal claim or demand therefor.
Second, the judgment in the action in ejectment being void, no right of any character could be based thereon; that the sheriff himself, who had made the demand of possession of plaintiff, was a trespasser if he at the time had an execution or writ of restitution upon the void judgment.
Third, that it devolved upon plaintiff to show an ouster for possession of the property turned over to her by defendant; that this is a prerequisite for the right to sue for breach of the covenant of warranty unless the owner and holder of paramount title has made demand for possession of the property: In such case proof of ownership at the time of the party to whom
Fourth, that defendant is not estopped to. deny the title of parties who executed the deed of trust to him after sale and purchase under the deed of trust, and that this being true there is a total failure of proof as to paramount title in the parties to whom the possession was given; there is no proof that they ever had any title to the property; there is no proof that they have title to the property to-day; there is no proof that they are the same parties who claimed the property at the time the deed of trust was executed.
We may remark, before considering these assignments, that it is rightly conceded that the deed of trust from the guardian and curator of the Haynes children was absolutely void. The probate courts of our State have no power to authorize the sale or incumbrance of the property of minor wards except for the education, support and maintenance of the minor or for investment. So our Supreme Court held in Capen v. Garrison, 193 Mo. 335, l. c. 348 et seq., 92 S. W. 368, and so our court held in Leet v. Gratz, 92 Mo. App. 422, l. c. 436, and following.
Notwithstanding that, all the title which the defendant here had to this lot, so far as appears, came through this deed, and that title was that of the Haynes heirs, acting or assuming to act through their guardian and curator. So they stood as grantors of defendant; he acquired all the title he had through a purchase at a sale under the deed of trust made by the trustee. With this fact in evidence, the court, at the instance of plaintiff, gave the third declaration of law, in which it declared that “if the parties from whom defendant derived title or claimed to derive title . . . are the same parties as those who demanded possession and to whom possession was given by plaintiff of the premises in question, then defendant is estopped to deny
We are referred to no case that precisely covers this. It is true that in Cutter v. Waddingham, 33 Mo. 269, l. c. 282, our Supreme Court held “that a vendee holding by deed, holds adversely to his vendor, and is not estopped to deny his vendor’s title.” The cases referred to in the Cutter case as settling this in our x State are Macklot v. Dubreuil, 9 Mo. 473; Joeckel v. Easton, 11 Mo. 118; Landes et al. v. Perkins, 12 Mo. 238, and Blair v. Smith, 16 Mo. 273. In every one of these, as well as in Cutter v. Waddingham, supra, the vendee either relied upon adverse possession, or showed a title superior to that of his vendor. That did not occur here. This defendant showed no outstanding title to defeat that of his grantors. That those grantors were the same persons to whom the plaintiff here, through the sheriff, surrendered possession, is not disputed; they were the Haynes heirs. Identity of name, in the absence of proof to the contrary, is identity of person.
In Steele v. Culver, 158 Mo. 136, l. c. 138, 59 S. W. 67, it is said that “it requires no citation of authority to show that a man cannot question a title given by himself or hold possession of the land in the face of his own deed. ’ ’
In State Bank of West Union v. Keeney, 134 Mo. App. 74, 114 S. W. 553, it is said (l. c. 79), quoting from Adams v. Wilder, 107 Mass. 123: “ A vendor is estopped from setting up a title in a third party, where the assertion of such title is equivalent to the admission of the breach of his part of an implied warranty of title. . . . In a contest between himself and his vendee, he should not now be heard to say that he had no title at the date of the sale, although at that date he asserted to his vendee that he had a good title. ’ ’
A judgment in ejectment against the terre tenant when the covenantor in the deed is made party to the suit is to be received in evidence as concluding the question of paramount title. It is competent for that purpose.
On the other hand, when no such judgment is given, the covenantee whose title has failed may nevertheless recover for the breach from the covenantor by showing a surrender to a paramount title. As we shall hereafter see, we think that in this case there was enough shown to disclose that plaintiff surrendered to a paramount title and that the judgment may be irregular is unimportant. In other words, plaintiff’s right of recovery is sufficiently made to appear by showing that Harvey’s title was derived from the Haynes heirs through the void proceeding in the probate court; hence it follows that he is estopped from denying in this suit by his grantee against him for failure of title the validity of the title of his immediate grantor. Harvey cannot dispute that the title he tried to convey to this plaintiff is good; that that is the paramount and the only title, that title under a void proceeding in the probate court.
But it is said that plaintiff here has failed to show ouster of her possession of the property. This on the ground that any execution or writ of restitution which may have been in the hands of the sheriff' when he demanded possession was void, as no. valid writ could issue on what is claimed to be a void judgment rendered in the action in ejectment.
The judgment in that action in which the Haynes heirs were plaintiffs and this plaintiff defendant, after the title of the cause, and setting out that the parties appeared by their respective attorneys and announced themselves ready for trial, waiving a jury, recites that the evidence being produced, the court finds that defendant (plaintiff here) is indebted to the plaintiffs
Mrs. Eaker had, so far as the evidence here discloses, never employed any attorney to defend that action. The attorneys who did defend it were employed
It was the undoubted duty of the attorneys in the case, employed by and in fact representing Mr. Harvey, to have watched the entry of that judgment and if not one authorizing surrender of possession, it was their duty to have notified Mrs. Eaker of the defect. They gave her no such notice. It is a question which we, however, do not decide, whether, even with that defect in the entry of the judgment, Mrs. Eaker could not have waived it. She knew what was in issue in the action of ejectment. The sheriff coming to her with what purported to be an execution dispossessing her, was notice to her of how the case had ended; that is, in favor of the Haynes heirs and against her, and to avoid further ex
Under such a state of facts it would be highly unjust to hold that the surrender of possession by Mrs. Eaker .was voluntary. Such a holding would be so technical as to lose sight of the very right- of a case and sacrifice that right to a quibble, relegating us to the days when courts were more concerned with forms than substance. Our statute (Revised Statutes 1909’, section 2082) forbids this, and our courts are always, in a proper case, glad to obey it.
We see no error in the action of the court in giving the two other declarations of law asked by plaintiff, nor in its refusal to give those asked by defendant: it gave three which covered the view of defendant but found against him on the facts.
Our conclusion on the case is, that the judgment of the trial court is for the right party. That judgment is affirmed.