160 Mo. App. 218 | Mo. Ct. App. | 1911
This was an action upon a breach of certain covenants of seisin of a general warranty deed. The action was instituted in the circuit court of Dent county on July 23, 1910. The deed was executed on the 7th day of November, 1885, by the defendants to the plaintiff for the west one-half of the northwest quarter of section 17, township 32, range 3. The alleged value of the property was $400'. The consideration paid was eighty-five cents on acre. The answer of the defendants was a plea of the ten years ’ Statute of Limitations, with an allegation that the land conveyed was wild land and was never in the actual possession of either plaintiff or defendants. Judgment was for the defendants and the plaintiff appealed.
The breach of defendants’ covenants of seisin, as stated in the petition, was that defendants had not
The evidence further showed that the said deed dated November 7, 1885’, conveying the said land to the plaintiff, also conveyed other land, namely, the east one-half of the northeast quarter and the east one-half of. the southwest quarter of section 20', township 32, range 3' (as well as other lands), this deed containing, among other covenants, a covenant that defendants were lawfully seised of an indefeasible estate in fee simple in the premises conveyed. The evidence' showed that on the southeast quarter of the northeast quarter of section 201, conveyed by the said deed, at the time of such conveyance, there was a field of some 20 acres, fenced, cleared out, and in cultivation, and that upon conveyance of the same to the plaintiff, he took immediate possession of said field and all thm improvements thereon and commenced the erection of a saw-mill plant, and built thereon several houses, and made other improvements for the purpose of operating and did operate a saw-mill thereon for a number of years. That by reason of the several conveyances
The court gave on hehalf of the defendants an instruction that if the defendants had no title to the land and no possessions, and did not put the plaintiff in actual possession of the land, then the covenants of seisin were broken immediately and the Statute of Limitations began to run at the date of the conveyance.
The finding of facts in the case was as follows: “That at the time of the execution of the deed by the defendants, J. 0. Organ and wife, the said Organ had no title whatever to the land involved in this suit, and had no possession of any kind of the same, it being wild land which he had purchased for taxes, the deed to which was void, and he had never taken possession thereof, and did not put plaintiff in possession, and that the tax deed made to the defendant for said land, introduced in evidence, is absolutely void as to the land embraced in this deed.” The appellant admits that this finding of facts is in accordance with the evidence in the case.
The entire controversy in this case is one of law. Respondents contend that the covenants of seisin were substantially breached and that the Statute of limitations began to run against them on November 7,
As we have seen, the facts are undisputed that on the day the deed with covenants of seisin was delivered to the plaintiff, the defendants had no title whatever to the land and no possession; that it was purchased by defendants at a tax sale and the deed was void; that the defendants had never had any possession, and that they did not put the plaintiff in possession.
This, as we have said, is an action by plaintiff’ (covenantee) against the defendants (covenantors) for the breach of a covenant of seisin. Seisin is of two kinds — seisin in law, and seisin in deed. A covenant of seisin implies that the covenantor is possessed of. both, that is, of the whole legal title, and the covenant is broken once and for all if the covenantor has not the possession, the right of possession, and the right of legal title. [Coleman v. Clark, 80 Mo. App. l. c. 342; Fitzhugh v. Croghan, 19 Am. Dec. 139; 2 Wash. on Real Prop., side page, 657.]
The law in this state is undoubtedly well settled that the covenant of seisin of an indefeasible estate in fee simple is a covenant in praesenti and is broken the moment of its creation provided the title of the covenantor is totally defective and he has no estate or possession whatever in the land, and in such cases the covenants of seisin between the parties are personal . and collateral to the land. If, however, any estate passes by the conveyance, or the covenantee takes actual possession of the land, such estate or possession ■will be sufficient to carry the covenants and such covenants will run with the land; and in such case, the covenants would be substantially breached when the covenantee was deprived of the estate conveyed or
The appellant contends with much earnestness, however, that he did .take actual possession on that date of the southeast quarter of the northeast quarter of section 20, and that the said tract of land was improved and was conveyed in the same deed as the west one-half of the northwest quarter of section 17; also, that subsequently, other tracts were conveyed by the defendants to the plaintiff, which, when considered as one body, joined and were contiguous to the southeast quarter of the northeast quarter of section 20 which contained the improvements, and that by virtue of actual possession of part of the whole tract, plaintiff
It follows from what has been said that the judgment of the trial court was for the right party and the same is accordingly affirmed.