71 Mo. App. 60 | Mo. Ct. App. | 1897
The defendants acquired, through mesne conveyances, the title of said Cunningham to the other undivided half of said lot. In 1893 the defendants, by a deed, for the expressed consideration of $2,000, conveyed the whole of said lot to the plaintiff, “except so far as the rights of Warren Lodge No. 74, A. F. & A. M. affect the upper story of said building, said upper story belonging to said lodge and not intended to be conveyed herein.” The deed contained the following covenants; that is to say, that the grantors therein “are lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that they have good right
The plaintiff went into possession under his deed, as he contends, of the whole of said lot except the upper story occupied by the Masonic lodge, and so continued until there was some talk in the lodge about putting up a stairway in the rear of the building, and the assertion by the master of the lodge of title to an undivided one half of the lot, when plaintiff made an examination of the records and found the deed from Cunningham conveying to said lodge an undivided half of the lot. After finding this deed the plaintiff did not any longer dispute the ownership of the lodge to an undivided half of the lot, but recognized its rights as tenant in common in respect to the lot. There is about thirty feet of the lot in the rear of the building on which is situate, in addition to the stairway, a warehouse. The plaintiff had judgment in the circuit court for nominal damages, and from which he has appealed.
The only question presented for decision arises out of the action of the court in refusing the plaintiff’s third instruction by which the court was requested to declare: “If the deed from the defendants to the plaintiff conveyed only the title to an undivided one half of the ground described in said deed, then the plaintiff is entitled to recover in this case the reasonable value, not exceeding the purchase price of the said undivided half of said ground
It has been many times declared by the supervisory courts of this state that where the grantee is admitted into the possession of land under the deed of conveyance, to entitle him to recover back the purchase money from the grantor, he must have failure of .title and an eviction or a surrender in obedience thereto. Collier v. Gamble, ante; Shelton v. Pease, 10 Mo. 474; Murphy v. Price, 48 Mo. 250; Cockrell v. Proctor, 65 Mo. 41; Holliday v. Menefee, ante. And where the title to part only of the land has failed the damages will be restricted
According to the principles just stated it is clear that the conveyance by defendants to plaintiff amounted to an ouster and disseizin of the masonic lodge as to said lot excepting, however, the upper story of the building. The masonic lodge held the upper story of the building in severalty. Its possession was thereafter limited to that. It was not a cotenant of the plaintiff. When it claimed the right to place its stairway in the rear of the building on that part of the lot which was outside of the building this amounted to the assertion of a hostile claim and that the defendants’ deed purported to convey to plaintiff. When the plaintiff was confronted with the title under which the lodge claimed a right to the possession of the lot in common with the plaintiff the latter could either yield to that title or maintain his adverse possession until dispossessed by an appropriate action at law. If he
The plaintiff having surrendered in obedience to the title of the lodge was entitled to recover damages to be measured by the actual loss he sustained. He was deprived of an undivided one half of his bargain. He was entitled to recover one half of the amount he paid for the lot with interest as the full and complete measure of his damages. To hold in a case where the facts are as here that the plaintiff has sustained no more than nominal damages would indeed be a travesty upon justice. It results that the trial court erred in its action refusing the plaintiff’s said third instruction, and in giving the defendants’ fourth. The defendants’ third instruction is subject to the same objection as their fourth and should not have been given.
This case in its facts is not like that of Pence v. Gabbert, 63 Mo. App. 302, cited by defendants, for there, after there had been a judgment establishing the paramount title to an undivided half in a third party against Gabbert, he continued in the exclusive possession of the land. He did not surrender or let his cotenant into possession as in the present case. There was no admission of the other one half owner to his rights as tenant in common and hence the two cases are unlike.