80 Mo. 396 | Mo. | 1883
This was a suit in equity to enforce a vendor’s lien against certain real estate near Kansas City, and to obtain judgment on the note which was given for. the purchase money for which the lien was claimed. Ellen L. Hunt, the wife of Robert H. Hunt, was owner of the land, and alleges in her petition that on the 15th day of April, 1875, she sold the land in controversy to William N. Marsh, defendant; that at the request of said William N. Marsh, she, joining with her husband, made conveyance of the land in question to A. Marsh and Eennimore C. Marsh, defendants, who were the wife and son of said William N., for the consideration of $1,309.88; that said William N. paid down the sum of $436.63, leaving a balance of $873.35 unpaid, for which he delivered to plaintiff a promissory note in the amount thereof payable to her, signed by said A. Marsh, E. C. Marsh and by said William N., who added to his signature the word “ security; ” that said William N. paid two installments of interest on the note, leaving the principal thereof still due with interest; that after the purchase said William N. entered into possession of the premises so conveyed, and is still in the possession thereof; that said Ellen L. Hunt is entitled to a vendor’s lien for the purchase money so remaining unpaid, and, therefore, asks for
The answer purports to set forth two defenses. In one it is alleged that the deed of conveyance contained covenants of warranty and against incumbrances, which had been broken by the existence of a right of dower still outstanding; that the dower right is worth $800; that the vendees have been damaged in said sum by reason of the breach of covenants aforesaid, which they asked to be allowed against the note sued on.
In the other defense it is alleged that the right to a lien was waived by Mrs. Hunt, when she accepted a note for the purchase money, signed by said ¥m. N. Marsh, as mentioned in the petition.
On motion of plaintiffs, the defense relating to the lien was stricken out. The plaintiffs demurred to the other defense relating to breach of covenants "and the court sustained the demurrer. This action of the court left the defendants without' any defense to the suit, and judgment was rendered according to the prayer of the petition, from which they have appealed.
The court did not err in sustaining the demurrer to the defense on the covenants. It failed to state an eviction either actual or constructive. It also failed to state a payment of the dower or other extinguishment of the dower right. It has long been settled that these covenants run with the land and inure to the owner who suffers ouster or who is compelled to extinguish the incumbrance to save his estate. No substantial injury happens before this, and no right of action accrues before. Dickson v. Desire, 28 Mo, 151; Ward v. Ashbrook, 78 Mo. 515; Jones v. Whitsett, 79 Mo. 188. The vendees being in possession of the land purchased by them, can make no such defense against a suit on the notes for the purchase money. Pershing v. Canfield, 70 Mo. 140; Cartwright v. Culver, 74 Mo. 179.
The action of the comb in striking out the defense relating to a waiver of the lien claiiped by plaintiff, affords.
In the case of Davenport v. Murray, 68 Mo. 198, the
We think the judgment was proper, and concur in affirming it.