222 Mo. 540 | Mo. | 1909
The learned counsel for tbe plaintiff very aptly denominates this cause as tbe aftermath of Waldermeyer v. Loebig, 183 Mo. 363. Tbe petition in tbe present case filed December 19, 1904, declared for tbe breach of covenants of title alleged to have been contained in tbe deed of trust which was before tbe court upon other considerations in that case. Tbe petition in substance alleges that tbe defendant, Mrs. Loebig, tbe widow of John Loebig, deceased, and one D. Ind. Neudorf, in February, 1897, in consideration of a loan of $7,000 then made by tbe plaintiff and to secure tbe same, executed to William F. Woerner, as trustee, their deed of trust upon certain premises, to-wit, tbe same real estate which was involved in Waldermeyer v. Loebig, 183 Mo. 363; that by said deed of trust Mrs. Loebig and Neudorf undertook to convey a fee simple estate and made use of tbe words “grant, bargain and sell” to convey tbe same; that they thereby covenanted to and with tbe trustee, bis successors in trust and assigns, and for and in behalf of tbe plaintiff as beneficiary in said deed of trust, that they were at tbe time seized of an indefeasible estate in fee simple in tbe premises; that tbe trustee sold the premises under tbe powers contained in tbe said deed of trust upon a default occurring thereunder, and tbe plaintiff having become tbe purchaser at this sale for tbe full amount of bis debt and interest, tbe trustee conveyed tbe said premises to him and thereby assigned to tbe plaintiff tbe covenants in said deed of trust. It was also alleged that tbe trustee bad
The answer was a general denial, with certain specific defenses, first, that defendant had no interest in the premises save as dowress, and that she only joined in the deed of trust to subject her dower thereto; that the money was loaned to Neudorf, the other party to the deed, and that the plaintiff at the time he made the loan knew all the foregoing facts. Second, that after a default in the deed of trust the trustee sold and conveyed the premises to the plaintiff thereunder in consideration of a sum bid by the plaintiff therefor in excess of his debt, which excess the plaintiff paid to the trustee, and that the notes held by the plaintiff for the loan were canceled, whereby the de
The reply admitted the settlement pleaded with the executrix of Neudorf, and alleged that in making it the plaintiff had expressly reserved his right to prosecute his action against Mrs. Loebig for full satisfaction of all his damages sustained by the breach of the covenants.
The jury was waived, and the cause tried to the court, which resulted in a finding for the defendant and judgment accordingly, from which the plaintiff appealed.
The undisputed facts in this case are fully stated by Judge Marshall, in so far as they existed at the time he wrote the opinion in the 183 Mo. 363, but for an intelligent understanding of the present case it is deemed necessary to repeat some of the facts which appear in that report. John Loebig in his lifetime owned the premises in controversy, which are situated on South Broadway in the city of St. Louis. There was upon them in his lifetime, a three-story brick building, the lower floor of which he used for business purposes, the second floor for a residence for his family, and the third floor he let out for other purposes. The St. Louis cyclone of 1896 damaged the premises quite materially and Loebig died shortly after that time, leaving them in a damaged state. He left no will and his surviving family consisted of the defend
“This deed made and entered .into this fifteenth day of February, eighteen hundred and ninety-seven, by and between Thresia Loebig, widow of John Loebig, deceased, and D. Independence Neudorf, curator, acting herein by virtue of and under an order of the St. Louis Probate Court, made at the December term, 1896, thereof, authorizing said curator to borrow $7,000 on the property of said minors, of the city of St. Louis, and State of Missouri, parties of the first part, and William F. Woerner, of the same place, party of the second part, and. Henry Waldermeyer, of the same place, party of the third part, witnesseth: That the said parties of the first part, in consideration of the*548 debt and trust hereinafter mentioned and created, and of the sum of one dollar to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain, and sell, convey and confirm unto the said party of the second part, forever, all the following described real estate, situated in the city of St. Louis and State of Missouri, and known and described as follows, to-wit: ’ ’ (Here follows a particular description of the premises). The habendum reads as follows: “To have and to hold the same, together with the appurtenances, to the said party of the second part and to his successor hereinafter designated, and to the assigns of him and of his successor forever. ’ ’
The deed of trust then recites a loan by the plaintiff to Neudorf of the sum of $7,000 for three years to bear interest at six per cent per annum, and contains the usual provision for the sale by the trustee in case of a default and for conveying the premises to whosoever shall purchase at said sale, and “upon such sale shall execute a deed in fee simple of the property sold to the purchaser thereof.” Mrs. Thresia Loebig, the defendant herein, joined in the deed of trust as above indicated and signed and acknowledged the same in proper form. Neudorf as curator received this $7,000 from the plaintiff and used it to pay the claims which had been alleged against the estate of Mr. Loebig.
Default was made in the payment of the fifth installment of interest and thereupon the trustee foreclosed the deed of trust on April 25, 1900, and plaintiff became the purchaser of the property for $9,100 and received a trustee’s deed therefor. Thereupon, as alleged in plaintiff’s- petition, he brought his action of ejectment for the premises and was defeated in the circuit court and no appeal was taken from that judgment. Following this the plaintiff instituted his action in equity against Neudorf and Mrs. Loebig and
“2. Upon the foreclosure of said deed of trust, and the execution of the deed by the trustee therein to the plaintiff, which was read in evidence, and upon the execution of the assignment by said trustee to the plaintiff, which was read in evidence, the right of action on said covenant vested in the plaintiff.
“5. The court declares the law to be that since' the plaintiff in compromising with the executrix of D. I. Neudorf expressly reserved his right of action for full recovery of the balance of his damages from this defendant, nothing which occurred with reference*550 to said compromise prevents Ms recovery in tMs case against the defendant.
“6. The court declares the law to he that the judgment of the circuit court, in the equity ease, and of the Supreme Court, on appeal, is conclusive of the fact that the plaintiff took nothing by the deed of trust, nor by the trustee’s deed, notwithstanding it may appear that. subsequent to the execution of said deed of trust the defendant inherited some interest in said premises by the death of one of her children.”
And refused the following declarations of law requested by the plaintiff:
“1. The court declares that under the terms of the deed of trust read in evidence in this case the defendant herein and D. I. Neudorf, jointly and severally covenanted with the trustee therein that they were seized of an indefeasible estate in fee simple in the property therein described, and this defendant is personally liable on said covenant.
“3. The court finds from the evidence that the defendant’s husband owned said property in fee, and died without a will, leaving’ him surviving the defendant, his widow, and three children; and the court declares the law to be that neither the defendant nor said D. I. Neudorf was seized of an indefeasible estate in fee simple in said premises, nor did they convey such estate by said deed of trust, and there has been a breach of said covenant in the deed of trust.
“4. The judgment of the circuit court, room 1, in the ejectment suit, and the judgment of the circuit court, room 2, and of the Supreme Court on appeal, in equity case, conclusively established the proposition that the plaintiff acquired nothing by said deed of trust and trustee’s deed, and that there has been a breach of the covenants in said deed of trust.
“7. If the court finds that the plaintiff on said deed of trust loaned seven thousand dollars, and that interest was paid thereon to the 15th of February,*551 1899, and not thereafter, then the court declares the law to he that the plaintiff is entitled to recover in this action from the defendant, seven thousand dollars with six per cent interest thereon from the 15th day of February, 1899, to the date of the receipt hy him of the money from the executrix of D. I. Neudorf, less the sum of six thousand dollars credited at that time, and to which balance thus arrived at should be added interest at six per cent per annum from the date of the receipt of the said six thousand dollars down to the date of the judgment.”
The defendant asked the lower court nothing hut a demurrer to the evidence, which was refused.
Several interesting legal propositions have arisen upon this record. The one which the circuit court regarded as controlling was whether this deed properly construed should he held to mean that Mrs. Loebig undertook to convey a fee simple estate in the said premises to the trustee Woerner for the benefit of plaintiff. For, if she did, then the use of the words “grant, bargain and sell” contained in themselves the covenant that she was seized of an indefeasible estate in fee simple in the said premises conveyed by the deed of trust. [Sec. 907, R. S. 1899.] Unless the deed purports to convey an absolute estate in fee, the words “grant, bargain and sell” mean only a transfer of the estate.
Again and again it has been ruled by this court that a deed must be read as a whole, in a word, by its four comers, and that many of the old formulas were no longer invoked by the courts. All mies of construction rest upon the principle that they were designed to ascertain the intention of the grantor and effectuate it unless some positive rule of law would be infringed hy so doing. Thus in the recent case of Stoepler v. Silberberg, 220 Mo. l. c. 267, in discussing the effect of these statutory words in a deed, it was said: “But while these covenants are expressed in
It is perfectly apparent from these documents referred to in the deed of trust itself that the only purpose and intent of the defendant Mrs. Loebig in joining in this deed of trust, was to convey her dower interest in the land. Directed by the recitals of the deed to the probate record, the plaintiff who was party to the deed of trust, was put on notice that the widow intended and only intended to convey her dower interest in said lots, and it is obvious this was the intent of all the parties. Had it been the intention to bind the widow absolutely, plaintiff would have required her to execute the notes, which she did not. He was fully advised that this realty had descended to the minors subject to the dower of Mrs. Loebig and that the guardian and curator had petitioned the probate court to permit him as guardian and curator to borrow $7,000, and. mortgage these premises in order to obtain a fund with which to make the improvements,
"We think the circuit court correctly construed this deed of trust in so far as Mrs. Loebig is concerned, and its judgment is accordingly affirmed.