77 Mo. 500 | Mo. | 1883
This case originated in the probate and common pleas court of Greene county, upon a demand for allowance in favor of respondent against the estate of Thos. Roundtree, deceased, upon a breach of covenant of warranty to forty acres of land conveyed by decedent to respondent in April, 1865. The demand was presented
“ It is admitted for the purposes of this trial, that Z. M. Roundtree is the administrator of the estate of Thomas Roundtree, deceased,, for the breach of whose covenant this action is had; that the deed of decedent to plaintiff was made and delivered to plaintiff.on the 13th day of April, 1865; that the forty acres of land for the loss of which this suit is pending, cost, at the date of said deed, $433.20; that plaintiff took possession of said forty acres under and by virtue of said deed, and held the possession of the same to his own use, till about two months ago, when the eviction complained of took place; that there was at the date of said deed of said Roundtree, deceased, to plaintiff’, outstanding paramount title to said forty acres, by reason of which such eviction took place as above stated; that plaintiff spoke to defendant Z. M. Roundtree, as administrator of Thomas Roundtree, deceased, about the suit in ejectment as soon as it was brought, in which the eviction took place afterward, but the defendant Roundtree declined to have anything to do witff the defense of said suit of ejectment; that plaintiff made an arrangement with the guardian (one J. L. McCracken) of the minor heirs of said deceased, by which said guardian agreed to assist and did assist plaintiff in the defense of said ejectment ; that said Thomas Roundtree died about the 1st day of January, 1870, and that said’ Z. M. Roundtree, the defendant, took letters on the estate of said Thomas Round-tree, deceased, on the 10th day of January, 1870; and gave notice of the grant of said letters to him as such administrator within thirty days after the date thereof; and is still proceeding with the administration of said estate for the purposes of said claim, though he has distributed a large portion of the estate under the order of the probate court to the heirs of said deceased.”
The above was all the evidence in the case in the probate court. The court, at the instance of the plaintiff,
The court then refused the following declarations of law asked by defendant, to-wit:
1. That in warranties of seizin, if at the time the warranty is made there is outstanding paramount title, a breach exists from the date of delivery of the deed, the damages, however, being only nominal, if there is seizin in the covenantee, but if no seizin follow, the damages are real and is the purchase money and interest.
2. That when seizin follows the warranty, until the eviction takes place there is nothing but nominal damages, and inasmuch as the purchaser may quiet his title by buying in the outstanding title at its reasonable value, the value of the land at the time of the eviction or purchase of outstanding title would be the criterion of damages.
3. That inasmuch as Thomas Roundtree, the warrantor, was dead at the time of the eviction in this case, and the cause of action did not exist at his death, the remedy is against his legal and not his personal representatives.
4. That the testimony showing that the administrator refused to have anything to do with the defense of Nor-fleet and others against Hutchins, he is not responsible for the costs.
These declarations of law were refused, and the defendant excepted. The court then rendered a judgment of allowance against the estate for $840.95; $433.20 of which was for the purchase money; $364.95 for interest on the same from said 13th of April, 1865, to May 30th, 1879, and $42.80 for costs alleged to have accrued in the ejectment suit in which the title to the forty acres was tried. Defendant filed a motion for a new trial which was overruled, and defendant excepted, and took the case to the
It is unimportant to determine the preliminary questions raised by the appellant as to the statute under which the proceeding in the probate court should have been conducted, or as to the regularity of the action of the circuit court in not trying the case de novo. The whole issue is in the agreed statement of facts and the law arising thereon. The interests of justice will best be subserved in deciding the case on its merits.
The reason of the rule for allowing both the purchase money and interest as the measure of damages is “ Because the party takes nothing by his deed;” being in- its inception and continuation a nullity. But if in fact the grantee takes something, as the possession, and enjoys it, the reason of the rule ceases, so far as the interest is concerned. Hartford, & S. O. Co. v. Miller, 41 Conn. 130. And this accords not only to the philosophy of the principle of compensation, but to the letter of the usual covenants of the deed for seizin and further assurance. In case of eviction the grantee loses the estate and is entitled to have back the consideration paid; but as he obtained and enjoyed the
The controlling reason assigned for permitting the covenantee to recover interest, notwithstanding his use of the premises, is that he is answerable to the true owner in case of eviction for the mesne profits. It must result, therefore, inevitably from this premise, that where the mesne profits are not recoverable no interest is recoverable, where the vendee has held possession. There should not be both usance and use in the grantee.
Section 18, chapter 151, General Statutes 1865, provides that “If the plaintiff prevail in the action, he shall recover damages for all waste and injury, and, by way of damages, the rents and profits, down to the time of assessing the same, or to the time of the expiration of the plaintiff’s title, under the following limitations: 1st, "When it shall not be shown on the trial that the defendant had knowledge of the plaintiff’s claim prior to the commencement of the action, such recovery shall be only from the time of the commencement of the action; 2nd, When it shall be shown on the trial that the defendant had knowledge of the plaintiff’s claim prior to the commencement of the action, and that such knowledge came to the defendant within five years next preceding the commencement of the action, such recovery shall be from the time that such knowledge came to the defendant; 3rd, When it shall be shown on the trial that knowledge of the plaintiff’s claim came to the defendant more than five years prior to the commencement of the action, such recovery shall only be for the term of five years next preceding the commencement of the action.” R. S. 1879, § 2252.
Under this statute, the ejector holding the paramount title could in no event recover rentals for a longer time than “ five years next preceding the commencement of the action.” Between that and the time of commencing the action, he can recover no rents prior to the knowledge of his claim coming to the tenant. So that in case of breach
The agreed statement of facts in this case recites “ that plaintiff' took possession of said forty acres under and by virtue of said deed and held possession of the same to his own use till about two months ago, when the eviction complained of took place.” So it is conceded that up to the ejectment the respondent had the use. There is no evidence of any recovery of mesne profits, nor of any knowledge on the respondent’s part prior “ to the commencement of the action,” of the outstanding claim. Why, then, should the covenantee, in such case recover interest for a period of fourteen years, as he did in this case, or for any period, prior to the eviction ? While there has been no direct adjudication of this question by the Supreme Court, of this State, yet in Lawless v. Collier, 19 Mo. 485, 486, Scott? J., with his characteristic strong sense of justice, asserts as correct the principle of this opinion. Leonard, J., in Dickson v. Desire, 23 Mo. 167, asserts that Whether the grantee “ be entitled to interest on the purchase money depends upon circumstances;” and he refers to Lawless v. Collier as authority. In Flint v. Steadman, 36 Vt. 211, it is held that where the covenantee “ had the use of the premises, and held them in a manner to be relieved from accountability for their use, the rule of damages will be the purchase money without interest.” This accords with a
The judgment of the probate court and the circuit court were, therefore, erroneous, and the same are reversed and the cause is remanded to the circuit court, with directions to certify the case hack to the said probate court of Greene county, with directions to proceed to enter up judgment in accordance with this opinion.