73 Mo. 677 | Mo. | 1881
The petition alleges that plaintiff sold and delivered to defendant 1,123 bushels and thirty pounds of corn, at sixty cents per bushel; that defendant paid plaintiff thereon the sum of $10, leaving a balance of $664.10 due
The only question in the case is the sufficiency of this answer. The court below, by sustaining the demurrer, held it insufficient. It must be confessed that there is great conflict of authority on this point. Many decisions have been made, in the courts of the different states, upon questions similar to that presented by this demurrer, and these decisions are by no means in harmony with each other; nor is it an easy matter to determine how the wmight of
It will be observed that this is a case between the seller and purchaser of personal property; where the vendee, when sued for the purchase price, sets up by way of defense, that the seller had no title to the property sold, and was and is totally insolvent and unable to respond to a breach of warranty of title to said property if sued therefor; and that said purchaser, upon notice and claim of the true owner thereof, and his threat to sue thérefor, has paid said claimant and owner the full value of said property.* Numerous cases are cited by the briefs of counsel on each side. Some of them are cases like this ; but many of them are cases between vendors and vendees of real estate, some of them between bankers and their depositors, and others between bailors and. bailees, or common carriers and their employers or shippers. In all these cases the point in dispute was the want of title in the vendor, depositor, bailor, consignor or other claimant; but whether the like or a different rule is applicable to all these classes of cases, it is perhaps not necessary here to inquire or determine.
In this State the principle is well settled, that the purchaser of land, who has- taken a conveyance with covenants of title, or a bond for such a conveyance, and is placed and continues in the undisturbed and undisputed possession thereof, will not be relieved against the payment of the purchase money on the mere ground of defect of title, there being no fraud or false representations as to the title and no eviction. In all such cases, he cannot resist the payment of the purchase money without offering to restore the possession thus acquired by him to the vendor. Mitchell v. McMullen, 59 Mo. 252; Harvey v. Morris, 63 Mo. 475; Wheeler v. Standley, 50 Mo. 509; Connor v. Eddy, 25 Mo. 72; Smith v. Busby, 35 Mo. 343. In all these cases, however, it is to be remarked that the parties attempting to set up this defense were in the undisturbed and undisputed possession of the real estate so bought, and that no person
It is equally well settled in this State,' that a pur- » chaser, who has paid for land, may, where the paramount title is outstanding, maintain an action against his vendor for a breach of his covenant of warranty without an actual eviction. “That is, an actual dispossession, by process of law, consequent upon a judgment, is not necessary, in order that a covenantee may maintain an action for breach of the covenant of warranty.” “In all such cases, however, of voluntary dispossession or ouster in pais, where there has been no judgment, the burden of proof is upon the covenantee to establish the adverse paramount title to which he has yielded; and the possession should only be surrendered after claim or demand made therefor.” Morgan v. The Hannibal & St. Joseph R. R. Co., 63 Mo. 129, and cases cited. Whether such a party, in such case, who had • given his note for the purchase money of such land, could in like manner successfully resist the payment of said note by assuming the like burden, when he has yielded to such adverse title without suit, by purchasing in the same, it may not be necessary here to consider or pass upon. Such also seems to be the law in other states, in like controversies between vendees and vendors of real estate. See 21 Wend. 131; 8 Barb. 1; 6 Gray 572; 4 Hill 643; 6 Barb. 165; 4 Mass. 349. It may be remarked, however, that the implied warranty of title, upon the sale of personal property has been held, by the authorities, to be analogous to a covenant for quiet enjoyment in the sale of lands; and it would seem, from these authorities, that the courts do
In the case at bar the*contest is between the seller and purchaser of personal property. The demurrer admits all the allegations of the answer to be true, and the judgment of the court, sustaining the demurrer, declares that they constitute no defense to this action. In support of this ruling of the court, the respondent cites and relies on a number of authorities to the effect, that “ in such case it is not competent to the vendee to dispute the title of his vendor, unless he has been charged at the suit of another person, who has, after contestation, shown a better title; that he cannot, in this way, draw the plaintiff’s title in question, by his own voluntary act of payment.” Such is the language of Vibbard v. Johnson, 19 Johns. 78. In this case, however, the purchaser knew at the time of his purchase that another party claimed the goods, to whom he afterward voluntarily paid the price without suit. To the same effect is the case of Morrison v. Edgar, 16 Mo. 411, 414. In this latter case, however, “ it was admitted that the purchaser had remained and was in the undisturbed and undisputed possession of the property, under the sale.” It did not appear that the real owner had in any way asserted his title or made any claim or demand for the propei’ty so bought and held. The case of Case v. Hall, 24 Wend. 102, 104, also recognizes the same doctrine. But among the reasons assigned by the court for such rulings, it was remarked, “ that the indemnity is complete by responding therefor, after a recovery under the paramount title.” In the case at bar, it stands admitted that the seller is wholly insolvent and unable to respond for a breach of his warranty of title, if sued therefor.
The case of the Delaware Bank v. Jarvis, 20 N. Y. 230, seems to recognize the doctrine of the demurrer. The
On the contrary, it is insisted on the part of the appellant, that in such case as the one at bar it is perfectly competent to the vendee to dispute the title of his vendor, without waiting to be charged at the suit of another person by due process of law ; that the purchaser, if satisfied that the claimant of the property is the true owner, and can and will, in an action against him, recover the property from him, or its value, is not bound to resist the claim of such owner, but may abandon the property to such owner, or pay him the value thereof, without action ; taking upon himself the onus of showing, if sued for the price by his vendor, that he had no title to the property or right to dispose of it; and that the party to.whom he has surrendered the property, upon claim, or to whom he has paid the purchase price, had the title and "was the true owner thereof. In support of this proposition numerous authorities are cited and relied on, where this doctrine is expressly recognized and sanctioned. Among them are the follow
If it be true as charged in this answer, (and the demurrer admits its truth,) that the plaintiff' was not the owner of the corn in question, and was wholly insolvent; and that the Baileys were the actual owners of said corn, and notified the defendant of their claim, and demanded payment therefor, and threatened to sue if their demand was not complied with; and that the defendant thereupon paid the true owners and claimants the full value of said corn, what wrong or injustice has been done? In such a case has the plaintiff' any standing in court? It will not do to say that it was the duty of the defendant to return the corn to his vendor. That would not have relieved him from his liability to the true owner, for a conversion of the property after demand and refusal. That he would have beui so liable there can be no question. Bordewell v. Colie, 1 Lansing 144. In a case like this, would it be equitable, just or proper to require the defendant to pay the purchase price to the plaintiff, and, when compelled by the true owner to pay the same a second time, to take the chance of recovering it back again, from his vendor, on his breach of warranty, when that vendor is admitted by the demurrer tobe utterly insolvent? By this answer, the defendant assumed the burden of proving its truth. He acts at his peril. The risk is his. If he succeeds, justice is satisfied. If he fails, the fault or misfortune is his, and he must take the consequences. Notwithstanding the conflict of authority on this point, as manifested by the above decisions and others not mentioned, we are satisfied, after a careful