114 Mo. App. 633 | Mo. Ct. App. | 1905
Andrew J. Morgan owned a tract of land in Putnam county in 1866. He died in that year leaving several children, and Elizabeth S. Morgan as his widow, the latter becoming owner of a life estate in the land under the homestead law of 1863. Elizabeth afterwards married John Fullen, the defendant in this case. Elizabeth, afterwards, in 1889, sold the land to Jacob E. Torrey for $500, the deed being a general warranty with covenants of seizin, the defendant, her husband, joining in the deed and the covenants. Torrey, the grantee, obtained of plaintiff, a loan company in Iowa, a loan of $1,100, due in five years, for which he executed his note and a deed of trust on the land in 1892 to secure the same to C. A. Dudley as trustee. Torrey conveyed the land by warranty deed in 1893 and so it was successively conveyed until it reached Mrs. Addie Culler in 1896. Elizabeth died in 1893, which put an end to her life (or homestead) estate, and the full title became vested in her children by Morgan, her first husband. One of these children acquired the title of the others and brought ejectment against Mrs. Culler.
Default was made in the payment of the note given by Torrey to this plaintiff and, in consequence, a substituted trustee sold the land under the deed of trust in 1902, and this plaintiff bought it in for ten dollars. Plaintiff then brought this action against defendant, John FuIIen, on his covenants in the deed from him and his wife Elizabeth to Torrey, as above stated, to recover the five hundred dollars consideration which Torrey paid for the land.
The question for decision is: Is the defendant liable to a remote grantee on his covenant in the deed he and his wife made to Torrey, their immediate grantee? In the first place we will say that, if defendant’s covenant is such as to run along with the land to successive grantees, it is no objection to his liability that, in this case, the plaintiff is a grantee through a trustee’s deed under a sale made in the foreclosure of a deed of trust. A sheriff’s deed will transfer such right (Dickson v. Desire, 23 Mo. 166) and so will a quitclaim deed (Johnson v. Johnson, 170 Mo. 48), and we can see no reason why a deed from a trustee under power of sale in a deed of trust should not.
Though it has long been a matter of discussion, it is now settled by the weight of authority that for a covenant to run with the land there must be privity of estate or of contract between the covenantor and the remote grantee. But, even though there is no title in the grantor, if he delivers his grantee possession of the premises, such possession is sufficient to create privity of estate, and the grantor’s covenant will run along to subsequent or remote grantees. But, if no title of any kind is conveyed and no possession is delivered, the grantor’s covenant reaches no further than his immediate grantee, which the latter may,' of course, assign. The covenant in such case is the covenant of a stranger to the title and to the premises and is merely personal
There is another consideration, which here suggests itself and should be noticed. Even though the covenant, on account of the character of estate to which it relates, is a mere personal covenant with the immediate grantee and not running with land, yet, if a substantial breach of it occurs while the land is still in the hands of such immediate grantee, he, of course, has a right of action on such covenant and his warranty deed will assign such right of action to his grantee, and the latter to his grantee, and so on, until it should become barred by the statute of limitations.
When this defendant joined his wife Elizabeth in the warranty deed to the lands in question, he had no estate or title in or to such lands. Elizabeth owned a life estate in them, but he was without any interest whatever. Therefore, unless he transferred the possession of the land to Torrey, his immediate grantee, there was no privity of estate between him and Torrey and,
Since possession was given to Torrey when he received the deed, it may be suggested that possession was given him by defendant. But it was not. Defendant might be said to be, in some sense, in possession of the premises when he joined his wife in the deed, but he was not so in a legal sense. He was Elizabeth’s husband and his character of possession was merely incidental to his relationship as her husband. He was, more properly speaking, in part occupancy of the premises. The possession transferred to Torrey was the possession that was sustained by Elizabeth’s life estate and she, as vendor of such estate, transferred the possession. A contention similar to the suggestion here made was urged on the Court of Appeals of New York (Mygatt v. Coe, supra) and we have drawn what we have just said from the answer made by Judge O’Brien in writing the opinion in that case. He stated: “The conception of possession in the husband in such cases may be traced largely to that instinct of the mind which so readily attributes to the husband, by reason of his headship of the family, the possession and dominion of the family home. That conclusion, however, will be dissipated by an application to the question of the legal principles that grow out of the right of the wife to hold and convey real property. The actual possession of the property is one of the incidents that flow from this right, and it must be in the wife in most if not in all cases where she has the legal title, and when possession is once delivered to her, it is not lost or impaired by permitting her husband to exercise acts of care, management or agency with respect to the property.” And he added that no authority had been found during the protracted period of the pendency of that case, where a husband had been held liable upon such a covenant in the deed of his wife.
Neither can it be said that, conceding that by reason
But plaintiff cites the cases of Pratt v. Eaton, 65 Mo. 157, and Foote v. Clark, 102 Mo. 394, as announcing a different view as to the effect of covenants made by those who do not own the land which they attempt to convey. We regard those cases as in harmony with the view we have taken. We have said there must be privity of estate in order.to carry the grantor’s covenant along with the land to remote grantees, and that putting the immediate grantee in possession was sufficient to establish such privity though the grantor had no other title than mere possession. We have further said that, where the grantor granted neither title nor possession, his covenant bound him to his immediate grantee and to those to whom such grantee might assign his cause of action on it. In other words, that such covenant was the covenant of a stranger to the title, wMch could not run with the land, and amounted to no more than an obligation to the immediate grantee and Ms assigns. Such covenants are broken when made and the immediate grantee’s right of action is substantial and complete, which he may assign and which he does assign by his warranty deed. But such cause of action is the cause of action of the original grantee, thus assigned by him, and the statute of limitations would run against it from the time it accrued in the hands of the original grantee. Whereas, the covenant of the grantor which runs .with the land is a covenant wMch accompanies the estate
Plaintiff’s case showing that it has no cause of action against defendant, the judgment will be affirmed.