Jones v. Stanton

| Mo. | Mar 15, 1848

Scott, J.,

delivered the opinion of the Court.

In September 1841, Stanton filed in the St. Louis Circuit Court against Jones, his bill for an injunction against a judgment at law forthe sum of $408 65, debt and damages, which was recovered by Jones vs. Stanton. By a change of venue the suit was afterwards taken to the Court of Common Pleas. The bill alledged that the consideration of the note was a quarter section of land in Illinois, sold by Jones to Stanton for the sum of $1000. That the amount recovered was the balance of principal and interest due on the said note. It is alledged that Jones is a non-resident of the State, and that his pecuniary circumstances are such as to make it extremely doubtful whether judgments against him would be available. The conveyance from Jones to Stanton contained the words “grant, bargain and sell,” and a covenant of warranty against the claims of all persons whatsoever. By a statute of Illinois, the words “grant,” “bargain” and “sell,” in a conveyance of any estate of inheritance, are adjudged to be an express covenant to the grantee, that the grantor was seized of an indefeasible estate in fee simple, freed from all incumbrances done or suffered by the grantor, as also for the quiet enjoyment of the grantee against the grantor, his heirs, &c., unless limited by express words contained in such deed. The tract of land conveyed by Jones to Stanton, was granted by John Rice Jones to his two sons, G. W. Jones, the complainant, and W. P. Jones, as tenants in common. W. P. Jones has since died, leaving brothers and sisters. Jones represented that he had a good title to the land sold to Stanton. The bill prays for an injunction and general relief.

Most of the facts stated in the bill are admitted by Jones. As to his alledged inability to meet his engagements, he says he will be able to pay all damages that may be recovered from him for any breach of any covenant he may have made with Stanton. Including himself, his brother left six brothers and sisters, or descendants from them. That Stanton has entered upon the land and keeps possession, and has used a great deal of timber which was valuable, and maintains that he has a good title to the whole tract of land, having purchased his brother’s half of it at an Auditor’s sale, where it was sold for the payment of taxes due on it.

A replication having been filed to the answer, the parties went to trial. The deed from John Rice Jones, the father, to G. W. & W. P. Jones, was read in evidence, as was also the Auditor’s deed. The evidence with regard to the ability of Jones to pay his debts was conflicting. Some believed him to be solvent, and others insolvent. A creditor, who had a claim against Jones, could get no other satisfaction than some lands in Illinois, the title to which afterwards failed.

An injunction was granted, restraining the collection of the judgment until a good title should be conveyed to Stanton. From this decree Jones appealed.

The injunction in this case having been granted prior to the taking effect of the late act relative to injunctions restraining the collection of the purchase money for real estate, the title to which has failed, it has been submitted without reference to that act, and as though it was clear of its provisions. There is no doubt of the general principle that a purchaser of land who has taken, a conveyance, will not be relieved against the payment of the purchase money on the mere ground of a defect of title, there being no allegation of fraud in the sale, nor any eviction. Under such circumstances, the party is driven to his remedy at law on the covenants in his deed. In a case free from fraud, and where there is no covenant, the purchaser will be without remedy in the event of a failure of his title. This doctrine is fully sustained by the case of Abbott vs. Allen, 2 J. C. Rep. 519. In the cause just referred to, Chancellor Kent declines expressing an opinion, whether or not an injunction should be granted restraining the collection of the purchase money, where there was an existing incumbrance which appeared to admit of no dispute. Such a case, he says, may form an exception to the general rule, and the cases seem to look to that point. In the construction of our statute of conveyances, a general warranty is not restrained by the covenants contained in the words “grant,” “bargain” and “sell,” as has been held by this court in the case of Alexander vs. Schriber, 10 Mo. Rep. It not appearing that the statute of Illinois has received a different construction by her courts, we must construe it as ours has been. Then there is a covenant of warranty, with an admitted defective title. There is no difference in principle between this case and that of an incumbrance whose existence is not denied. . Itis assumed that a defect in Jones’ title exists, because he admits that to five-twelfths of the land conveyed, his only title is á purchase from the Auditor for the taxes due on the whole tract. Jones being a co-tenant with his brother’s heirs, was as much bound to pay the taxes as they were. Each of the owners were severally liable for them. If a.tract of land is mortgaged fora joint debt by two, will the discharge of the incumbrance by one of them vest the legal title in him to the whole? He who pays the debt is not without recourse against his co-debtor; but by doing that which he was bound to do, he cannot, under the pretence that another was liable to do the same thing, deprive him of his rights. In the case of Williams vs. Gray, 3 Greenleaf, 207, two non-residents held in common an unsettled tract of land, which without their knowledge, was sold for the non-payment of the State taxes; and they afterwards made partition by mutual deeds of release and quit-claim, in common form; after which one of them, witfiin the time of redemption, paid the tax to the purchaser at the sheriff’s sale, from whom he took a deed of release and quit-claim to hirrself alone, for the whole tract; it was held that this payment and deed enured to the benefit of them both; that the party paying had his remedy by action against the other for contribution; and that he who had no^ paid might still maintain a writ of entry against the other, for his part of the land. So in the case of Van Horne vs. D. Fonda, 5 J. C. Rep. 388, that where two devizees are in possession of land, under an imperfect title, devised to them by their common ancestor, one of them cannot buy up an outstanding or adverse title, to disseize or expel his co-tenant, but such purchase will enure to their common benefit, subject to an equal contribution to the expense.

Upon the whole, taking into consideration the admitted defect in the title of Jones, and the great doubt existing in relation to his ability to pay his debts, we think we are warranted in requiring a stay of the collection of the debt, until Jones gives a bond with security, indemnifying Stanton against any loss he may sustain in consequence of the defect in his title to the land conveyed to him. 2 Tuck. Com. 475. Decree accordingly,

the other Judges concurring.