99 Mo. 604 | Mo. | 1889
Action for breach of the covenants of warranty in a deed of land, the covenants being the ordinary statutory ones. The land is situate in the counties of Bollinger and Cape Girardeau, and is described in the deed thus: “Commencing at a rock for a corner, marked thus X, about ninety yards up Big Whitewater from the mill of Estes and Lambert, said rock, or beginning corner, stands on the west bank of Big Whitewater. Thence runs up a drain in a southwest course to a stone for a corner, marked thus X. Thence runs a northwest course, so as to include the house and garden where the said Felix G. Lambert now lives, to a stone for a corner, marked thus X. Thence running east to a stone for a corner, marked thus X, on the bank of Big Whitewater, so as to include the spring, to the beginning corner. All of which is in sections 31 and 32, in township 33 north, of range 11 east, and containing about four acres.”
The controversy is in regard to that portion of the land lying in Bollinger county. To overcome the paper title, the defendant attempted to show a title by limitation. The plaintiff was not evicted by Bollinger; but was served by him with notices demanding possession and was threatened with an action of ejectment, and thereupon yielded the possession to Bollinger and brought his action as aforesaid.
Plaintiff was not compelled to wait until his eviction occurred. He had a right to yield possession to the holder of the paramount title, taking upon himself, however, the risk of showing that Bollinger had that title. Hall v. Bray, 51 Mo. 288; Morgan v. Railroad, 63 Mo. 129; Ward v. Ashbrook, 78 Mo. 515, and cases cited. And the measure of his damages is the purchase money with six per cent, interest, from the time of yielding possession. Hutchins v. Roundtree, 77 Mo. 500.
Instructions were given in behalf of plaintiff in conformity to the foregoing views, and instructions were also given in behalf of the defendant as to the effect of ten years adverse possession on the part of defendant and those under whom he claimed. The jury found for the plaintiff, giving him a certain amount of damages.
There was error in the refusal of the court to permit the defendant to testify whether the plaintiff had paid the consideration expressed in the deed. This question went to the very heart of the plaintiff5 s cause of action, because if he paid no consideration it stands to reason he had suffered no damage, and was a not entitled to recover what he had not paid. The effect of the testimony offered on this point was not to overthrow the deed as a conveyance; but merely to show just what was the amount paid, if any, or that none at all was paid. Rawle on Cov. [5 Ed.] secs. 173, 174, and cases
Now, in relation to the description in the deed, it is certainly very peculiar ; but it seems it was capable of' being located, and was located, by those familiar with the locus in quo. Apart from this the defendant would be estopped from asserting that his deed, owing to a faulty description, conveyed nothing, and therefore he could escape a judgment on his covenants.
Eor the error aforesaid, the judgment will be reversed and the cause remanded.