48 Mo. 247 | Mo. | 1871
delivered the opinion of the court.
This is an action upon the covenants of a deed of conveyance executed by defendants to plaintiff, and the record presents several questions for our consideration.
I. Upon breach of covenants, are the defendants personally liable? The deed is an indenture “made and entered into between Thomas L. Price, Alexander Lee, Thomas Williams, Jos. Brooks and James B. Gfardenhire, trustees of the University of Missouri, at Jefferson City, of the first part, and Richard Murphy, etc., of the second part,” and “witnesseth, that the said parties of the first part, for and in consideration,” etc., “have granted, bargained and sold, and by these presents do grant, bargain and sell, unto the said party of the second part,” etc.; and further, that “ the said parties of the first part, for themselves, their heirs, executors and administrators, covenant to warrant and forever defend,” etc.
These covenants, both the statutory ones embraced in the words “grant, bargain and sell” and that of warranty, are merely personal. The grantors describe themselves as trustees, but they do not grant as trustees or warrant as trustees, nor do they describe the corporation as granting or warranting. The whole is so clearly personal that it becomes unnecessary to consider whether they had authority to bind the corporationfor if they had not, although the words of the instrument show that the trustees did not covenant for themselves, they would be personally liable as having exceeded their authority. (Sumner v. Wil
2. The grantee has never been actually evicted, and hence it is claimed that the covenants have not been broken. But the record shows that the grantors were not in possession, and did not and ccfuld not give possession to the grantee. Thus were the covenants all broken. The covenant of indefeasible seizin embraced in the statutory words ‘ ‘ grant, bargain and sell ” would be nominally broken in all cases where there was paramount title, even though the grantee took possession. But where the holder of such title is in possession so as to exclude the grantee, he is entitled to full damages, i. e. the purchase money and interest. And so with the covenant of warranty. Though eviction either actual or constructive, by being obliged to purchase in the paramount title, is held to be necessary where the grantee is put in possession, yet “ when, at the time of the conveyance, the grantee finds the premises in possession of one claiming under a paramount title, the covenant for quiet enjoyment or warranty will be held to be broken without any other act on the part of the grantee or the claimant, for the latter can do no more toward the assertion of his title; and, as to the former, the law will compel no one to commit a trespass in order to establish a lawful right in another action.” (Rawle on Cov., 3d ed., 255.)
3. The petition charged generally that defendant executed the deed, while the evidence shows that it was executed through an attorney in fact, who was duly authorized by power of attorney. This is no variance, as is claimed. Pleadings should not set out the evidence, and it is equally the execution of decedent whether done personally or by attorney.
Some other points were made which we do not think it necessary to consider, and the other judges concurring, the judgment will be affirmed.
