55 Mo. 235 | Mo. | 1874
delivered the opinion of the court.
This action was brought to recover a balance on a promissory note, aud to foreclose a mortgage executed to secure the payment of the amount due thereby. Jane Stewart (the plaintiff) in the month of January, 1866, sold and conveyed
The plaintiff introduced witnesses, whose evidence tended to prove that the land conveyed to Hadley by the plaintiff was at the time of the conveyance worth the amount of the consideration paid therefor, without including the acre ot land on which the church building was erected; that said
As the foregoing evidence was introduced by the plaintiff, the defendant objected to each part thereof on the ground that it was incompetent, and irrelevant, and attempted to contradict and invalidate the deed set forth in the answer. The court overruled the objections and admitted the evidence, to which the defendant at the time excepted. The defendant then on his part introduced several witnesses,whose evidence tended to prove that the land, conveyed to Hadley without the acre upon which the church stood was worth a little less than $20 per acre. Some of the witnesses thought it to be worth that amount, some less. The evidence also tended to prove, that the acre of land conveyed to the church trustees, together with the house thereon, was worth from eleven to twelve hundred dollars, and that the value of the acre tract was, as compared to the value of the whole quarter section, about equal to from one fifth to one seventh part thereof. The defendant, James Hadley, being sworn, in his evidence contradicted the evidence of the plaintiff, except as to his knowledge that the church was on the tract of land purchased, but stated that plaintiff said she had purchased and owned the entire quarter section of land, including the church acre, and that she had sold and conveyed it all to him, and that it was doubtful whether he would have taken the land at the price agreed on, without the acre on which the church stood. This being all of the evidence on either side, the court, at the request of the plaintiff, declared the law to be: i
1st. “That if the court believe from the evidence, that on the — —day of-A. I). 186 — , plaintiff sold, conveyed and delivered possession of the land to the defendant as set forth in the pleadings, and that defendant was in person upon the land before purchasing the same, and saw and examined the land he was purchasing, and did purchase the same at and for the consideration of $-, and after the bargain was consummated became possessed of the land and has not been disturbed in the possession of any part of the same by any person or body
2nd. “If the court believes from the evidence, that plaintiff sold the land, as described in the pleadings, to defendant and conveyed the same to him on the — day of — A. D. 1868, by a deed containing the usual covenants of warranty, and after such conveyance defendant went into possession of the land and is still in fall possession of all said land, and that defendant, after the purchase thereof, executed and delivered to plaintiff a mortgage upon all of said land, as described in deed of plaintiff to defendant, to secure deferred payments for the land, then the court must fiud for the plaintiff, although it should believe from the evidence, that there was a deficiency of one acre of land in the quantity conveyed to the defendant by plaintiff, as the vendee must look to the covenants contained in said deed for such deficiency.”
3rd. “If the court should believe from the evidence, that defendant before purchasing the land went on the land, examined its boundaries and monuments, saw tbe building standing on a part of said land, and that he was informed before purchasing the land that it was a church building, either by knowledge communicated to him by other or by the general appearance of said building, and the defendant considered the tract of land purchased, less that occupied by the church, of the value of the consideration so paid for it, then the court will find for the plaintiff, unless the court should further find that, prior to the sale and conveyance of the land to defendant, plaintiff had actual knowledge of the existence of the deed for the land on which the church building stood, from grantor of plaintiff to some party or parties, for church purposes, and by fraud and deception sold and conveyed for a valuable consideration said acre of land, on which the building was erected, to defendant as hers,when she knew at the
The defendants objected to each of these declarations of law so given, and at the time excepted. The defendants on their part then asked the court to declare the law to be as follows:
“ That if the court finds from the evidence, that plaintiff did on the — day of — 186-sell and convey the land in controversy, to-wit: * * * * * to defendant by a deed containing covenants of warranty and seizin, and if the court further find that, at the time the deed was made by plaintiff to defendant, she was not the owner of a part of the land in controversy, and could not convey the same to defendant, then the court declares the law to be, that the covenants of warranty and seizin in plaintiff’s said deed were broken as soon as made, and that said defendant is entitled to recover in this action, as damages for breach of said covenants, the actual value of the part of said property, including the appurtenances thereto belonging, to which the title has failed.” The court refused to declare the law to be as asked by the defendants, and the defendants again excepted. The court then on its own motion declared the law to be as follows:
“For a breach of the covenants of seizin the measure of damages is the consideration given and received, and if the court believes from the evidence, that the land sold by plaintiff to defendant falls short of the quantity sold and described in plaintiff’s deed to defendant, then there has been a breach of the covenants, and the defendant is entitled to a rebatement to the amount of the value o’f the deficiency of the land so conveyed. To the giving of the said declaration of law by the court, the defendants also, at the time, excepted. The court then rendered a judgment in favor of the plaintiff for the sum of $1415, and foreclosing the equity of redemption in the mortgaged land, &o. The judgment is as follows:
“Now at this day, the cause again coming on to be heard, the same having been taken under advisement by the court,
After tbe rendition of this judgment the defendants
It is evident from the record in this case, that the trial was had and conducted to final judgment under a misapprehension of the law, and without any reference to the issues in the case. The petition was founded on a note for thirty-one hundred and fifty dollars. The petition admitted that three payments had been made on the note, amounting in all to $1450, and claimed that the balance with the interest was due plaintiff, for which judgment was prayed. There was also a prayer for the foreclosure of the equity in the mortgaged premises. The answer of the defendants did nor controvert any allegation in the petition, but set up a breach of a covenant of seizin in a deed to a tract of land, which was the consideration of the note sued . on, by which breach defendants claimed to have lost title to, or that he received no title to, one acre of the land conveyed, by which, damages had resulted, which damages were set up as a counter-claim to the action. The plaintiff replied to this counterclaim and did not deny the sale of the land nor the execution of the deed with the covenants charged, nor that the title had failed to the acre of land as charged in the answer, but she states in avoidance of .the covenant of seizin as to the acre of land to which she had no title and as to the right of plaintiff to recover damages therefor, that the acre of land included in her deed to which she had no title, had erected thereon a building for church purposes; that it was notorious that the church building was situate on said acre of land; that it was a conspicious building well known to defendant, and that he knew that it was not intended by plaintiff either to sell or convey said building or acre of land to the defendant, and that therefore she was not bound by said covenant in said deed as to said acre of land or the improvements thereon ; that said church and acre of land were not included in the sale made by her of said land to the defendant, but that the same was excepted therefrom, and intended to be so excepted in the said deed conveying the same; but that the deed was written so as to include said church and acre of
This issue made by the replication to the defendant’s answer was the only issue to be tried. The question was a question of mistake, and was in the nature of an equitable defense. This question of mistake should have been passed on by the court, and if the court had found, that the parties did not intend that this acre of land should be included in the deed, and that the defendant never intended to convey it by the deed, nor to make a covenant of seizin in reference thereto, and that by mistake or inadvertence she signed the deed with the acre of land included, contrary to the agreement or intention of the parties, then the plaintiff had a right to recover the whole balance due by the note -sued on after allowing the credits stated in the petition, together with interest from the maturity of the note, -unless some reason to the contrary exists, not apparent on the record. But if the acre of land was sold by plaintiff and intended by the parties to be included in the deed, or in other words if the plaintiff failed in this equitable defense to the defendant’s counter-claim, then the defendant was entitled to have deducted from the balance due by the note sued on the damages sustained; the measure of damages being ascertained by finding the proportion that the value of the acre, to which there is no title, bore at the time of the sale to the value of the whole tract sold, and if it was one fifth of the value of the whole tract, then one fifth of the whole price agreed to be paid by the defendant for the land, with interest, should be deducted from the amount due on said note, and judgment rendered for the balance; and if the proportion of the value of the acre of land to the value of the whole should be more or less than one fifth, then the result would be varied by the same rule. It will be seen from the declarations of law given and refused, and by the finding and judgment of the court, that the only issue to be tried in the cause was wholly ignored. No finding is made as to the mistake in the deed either one way or the other, and no notice whatever taken of the counter-claim or the issues
The judgment will be reversed, and the cause remanded, when it can be tried in conformity to this opinion, and a proper j udgment rendered.