79 Mo. 664 | Mo. | 1883
Lead Opinion
In December, 1829, one Thomas Houghan, of St. Louis, sold and conveyed to one Larkin Deaver, of said city, a lot of ground in said city, for the expressed consideration of $5,000. The granting clause of this deed contained the following: “ Have granted, sold, aliened, enfeoffed and confirmed, and by these present do grant, bargain, alien, enfeoff and confirm unto the said Larkin Deaver,” etc. The habendum clause contained the following : “ To have and to hold said lot of ground, with buildings and improvements thereon, and all privileges, rights and appurtenances thereto belonging unto him, said Larkin Deaver, his heirs, assigns forever; and the said Thomas Houghan for himself, his heirs, executors and administrators, doth covenant with said Deaver, his heirs, executors, administrators and assigns, that the said Thomas Houghan, his heirs, executors and administrators, will forever warrant and defend the said lot of ground and every parcel thereof, unto him, the said Deaver, his heirs and assigns, against
It appears that in 1814 said Houglian was married to Sophia Knapp, in the state of New York, and that she was yet living at the time of the institution of the suit hereinafter mentioned, aged about eighty-six; Larkin Deaver died intestate in 1850. His estate was duly administered, and finally settled in 1856. Houghan also died, and his estate was fully administered and closed; soon after the year 1862. There was nothing left of his estate after payment of debts, etc.
In October, 1863, said Sophia, as the widow of said Thomas Houghan, brought suit in the St. Louis land court, against said Mary L. Tyler, for the recovery of her dower interest in said lot, in which she recovered, on the 14th day of June, 1864, judgment for her said dower interest, com-, puted at the sum of $433.35, together with costs of said suit, in all amounting to $542.54. It was further adjudged in said cause that the yearly sum of $650 be paid to her, as and for the yearly value of her dower in said premises during her life. Mrs. Tylor paid said damages and costs, amounting to $542.54, and in February, 1865, she instituted in the St. Louis land court, a suit against said Isaac Walker to recover the said sum, on the breach of the warranty and covenants in his said deed to her against incumbrances, by which action she recovered against said Isaac the sum of $564.05, which he then paid together with $20.15 costs.
In February, 1879, the plaintiff, as administrator de bonis non, brought this suit to recover of the heirs at law the sum so paid as aforesaid. The petition alleges that the defendants are the heirs of said Larkin Heaver, deceased; that said defendants received as such heirs and legal distributees from the estate of said Larkin Deaver, assets much larger than the amount claimed from them in this action. The petition also sets out in detail the facts above stated, alleging that “ by said deed the said Larkin Deaver covenanted to and with the said Joshua Walker, his heirs and assigns, that the said premises so conveyed were free and clear from all incumbrances, and that said Larkin Deaver also thereby covenanted to, by and with the said Joshua Walker, his heirs and assigns, that he and his heirs, executors and administrators would forever warrant and defend the said premises unto the said Joshua Walker, his heirs and assigns, against the lawful claims and demands of all parties whomsoever.” The petition also alleged notice to the said grantors and to the defendants of the institution of the several suits respecting said dower and by
The answer pleaded the general issue and tendeued the following special pleas:
1. That the defendants are not proper parties, but an administrator de bonis non should have been appointed and suit brought against him.
2. That the real estate did not increase fu value while Larkin Deaver owned it; that by the first section of the act of the general assembly of the State of Missouri, entitied an act “Concerning Dower,' approved February 5th, 1825, it is provided that no widow shall be entitled to dower in any lands, tenements or hereditaments until all just debts due or to be due by her deceased husband shall have been paid; that said act continued m full force until the 4th day of July, 1835; that while said act was in full force, said deed mentioned in the petition from said Thos. B. Houghan and wife to Larkin Deaver, dated December. 30th, 1829, was executed and delivered by said Thomas B„ Houghan and wife to said Larkin Deaver ; that said Thomas B. Houghan was the owner of no property, real, personal or mixed, at the time of his death, and, therefore, the plaintiff cannot recover any part, of the alleged sums of money demanded in his petition; because such recovery would create a debt m favor of defendants against the estate of said Thomas B Houghan precisely equal to the amount so recovered, which would be in direct violation of said 1st section of said act of the general assembly, which forbade the widow from directly or indirectly creating any such debt by her own acts or by the acts of others whose proceedings were caused by her acts.
3. That at the time said Larkin Deaver conveyed the said real estate to the said Joshua Walker, the same include
The matters pleaded in the second and third special defenses were, on motion of the plaintiff', stricken out as constituting no defense.
On the trial the deeds evidencing the several conveyances aforesaid were read in evidence; also the record in the suit of Sophia Houghan for recovery of dower, and of Mrs. Tyler for recovery on the covenants of warranty against Isaac Walker ; defendants objecting and excepting. The following admissions were made, to-wit:
1. That the property described in plaintiff’s petition did not increase in value between December 30th, 1828, and February 21st, 1830, being the period whilst the title thereto was held by Larkin Deaver.
2. That Isaac Walker, after ne acquired title to the property, and about 1834 or 1835, took down and removed the improvements that were on the property, and erected and put up other and more expensive improvements, and the party to whom Isaac Walker conveyed the property put up additional improvements, which are now on the property.
3. That the improvements which were on the property in question while Larkin Deaver held the title thereto, did not exceed in value $2,000, and were worth $1,500 when he conveyed to Walker
5. That Larkin Beaver died in the year 1850 ; that the administration of his estate was finally settled and closed in the year 1856; that the defendants are children and heirs of said Larkin Beaver; and that they received assets of the estate of said Larkin Beaver more than sufficient to pay the amount claimed by Ihe plaintiff in this action.
6. That the annual tax, not including the improvements as on the property in question from August 20th, 1862, when Houghan died, to the present time, exceed the annual rental-of said property while Larkin Beaver owned it.
The plaintiff' made proof of the payments by Mrs. Tyler to Mrs. Houghan, and by Isaac Walker to Mrs. Tyler, of the several sums named, and the dates of said payments, as stated in the petition; and of the several payments made by the administrator and executor as alleged.
The plaintiff also offered evidence tending to show the value of the rentals of the lot in question, exclusive of the improvements, after the recovery of the judgment dower suit in 1864, this being done presumably with a view of establishing the fact that the amounts paid to Mrs. Houghan on account of said dower interest were reasonable.
The defendants put in evidence the annuity tables, as bearing upon the same issue.
The principal controversy arises on the following instruction given on behalf of the plaintiff: “If the court
The court having found the issues for the plaintiff, the defendants appealed to the St. Louis court of appeals, where, by stipulation, the judgment of the circuit court was affirmed pro forma. The defendants bring the case here by appeal.
But in the case at bar, the estate for many years had been finally administered, and the assets all distributed. The cause of action did not accrue until long after admin
There is no question but under the law, as construed by our Supreme Court, this covenant against all incumbrances, is perfectly consistent with the special covenant, implied by the words “ grant, bargain and sell.” Alexander v. Schreiber, 10 Mo. 460. A special covenant restrains a general one only where the two are absolutely irreconcilable. And where they are independent of each other, though in the same deed, they will be upheld, Ib.
The dower interest of Mrs. Houghan, though inchoate at the time of the execution of the deed, was an incumbrance, and constituted a breach of the general covenant, for which an action might have been maintained instantly. This covenant covers all such claims depending on a future contingency, “ whereby the same may be defeated, wholly or in part, whether the claims or liens be uncertain and contingent or otherwise.” Shearer v. Ranger, 22 Pick. 447. But until there is an actual loss, eviction, or its equivalent, consequent upon this incumbrance, only nominal damages are recoverable. 3 Washburn Real Prop., (4 Ed.) 458, (658); Dickson v. Desire, 23 Mo. 163, 164, 165, 166; Magwire v. Riggin, 44 Mo. 514.
In Dickson v. Desire it is held that the statutory covenant runs with the land, and where possession accompanies
In the deed of Deaver there is an express covenant against “ all persons, claims, liens, titles and incumbrances.” The petition sets out all these covenants, and invokes them all.
No objection was taken below, nor is any urged here, to the joinder of the defendants in the action. Under our Practice Act, designed as it was, to prevent a multiplicity
But under the judgment entered herein, which is in the common form against the defendants jointly, on an execution issued thereon the sheriff would be authorized to make the whole debt out of the property of any one defendant. This is beyond the letter of such defendant’s liability. It will not do to say that the defendant would be entitled to contribution from the delinquent defendants. The law does not affix to his liability any such trouble, expense or risk. A co-defendant and his property might be beyond the jurisdiction of the court of defendant’s State, or he might be insolvent.
In Strouse v. Barnett, 3 Dana (Ky.) 391, which was ah action to recover against the administrator and commissioner, with whom the heirs were joined, (part of the funds being yet held by the commissioner, and part distributed to the heirs,) funds arising on the sale of slaves in partition, the court held, page 394, that “ it was error to decree against the heirs jointly. Such decree might fall upon one only in case of non-residence or insolvency of the other heir, and exceed the amount which was paid over to him by the commissioner.” The decree should have been “that each of the distributees pay * * his equal share of the sum, provided his share shall not exceed the amount received by him in the course of distribution.” So in Mason v. Peter, 1 Munf. (Va.) 446, the court say: “Instead of decreeing that the devisees should pay jointly, it ought to have directed a valuation of their lands respectively and charged them pro rata.” In Metcalf v. Smith, supra, (40 Mo. 576,) it is said: “The court refused, on the application of the plaintiffs, to declare that the defendants were liable in solido; and in this, we think, it was correct, for where heirs are proceeded against on account of assets which they have received from the ancestor, they are chargeable only distributably and_p?“o rata.” This is ré-affirmed
It is perhaps justly inferable from the petition and the agreed statement of facts that the defendants received an equal share of the assets of the estate. This being so, flhe judgment should have been, that each of the defendants pay his pro rata share of the judgment and no more, and that execution issue accordingly. Under section 3673, Revised Statutes, it is now perfectly admissible, even in an action at law, to render such a judgment. Judgment may be rendered against one or more defendants, or all, for equal or unequal amounts. In this form of actions, all the heirs being necessary parties, there must, in the nature of the ease, be separate judgments.
It appearing from the agreed statement in this case, “that defendants are children and heirs of said Larkin Deaver, and that they received assets of said estate of Larkin Deaver more than sufficient to pay the amount claimed by plaintiff in this action,” it is, therefore, ordered by the court that the judgment of the court of appeals be
Rehearing
On Motion for liehearing.
We are asked to review the opinion delivered m this case, 1st, Because the opinion assumes that the covenant in the habendum clause of Deaver’s deed embraces a covenant against incumbrances, when in law and fact it was merely a covenant to warrant and defend against incumbrances. It is however quite manifest, from the brief presented in support of the motion, that appellants’ real grievance is the amount of recovery adjudged against them,and they return to re-discuss the same matter so strenuously argued in the submission of the ease, to-wit: that on the breach of the covenant of warranty touching incumbrances, the amount of damages cannot exceed the original purchase money with interest.
The vice in their argument lies in confounding the.covenant of seizin with that against future incumbrances. The rule is well settled that the damages recoverable for a breach of the former covenant are limited by the amount of the purchase money and interest. But the covenant to “ forever warrant and defend the said lot of ground and every parcel thereof, against all incumbrances whatsoever, either in law or in equity,” is in the nature of an indemnity. Rawle on Cov., 134, 154, 313. Under our statute of
The measure of damages in respect of the statutory covenant being thus settled in this State, it seems to me that the whole foundation falls from under the reason that would restrain the operation of the covenant as to incumbrances in futuro to a lesser or different amount of damages for its breach. To say there should be one rule of damages in the State for the breach of the covenant against incumbrances in praesenti, and another for incumbrances in futuro, would be unphilosopliical, and involve the court in the absurdest contradiction. The case of an assignment of dower interest very aptly illustrates the good sense and justice of the rule established by our Supreme Court. Where the premises, as in the case at bar, were aliened during the life of the husband, the widow, it is true, is endowable in such lands according to their value at the timé of the alienation. And while she would not in such ease .be entitled to an assignment out of the improvements placed thereon by the labor and money of the alienee, yet I take it the better and settled doctrine is, that she would be entitled to an assignment out of the improvements or advancement in value “ arising from extrinsic and collateral causes unconnected with the direct improvements of the alienee.” McClanahan v. Porter, 10 Mo. 746, 754; Rawle on Cov., 327, 328. Under our statute for the assignment of dower, where the land, as in this case, was not susceptible of division in kind, the yearly value of the widow’s dower shall be ascertained. The court shall thereupon render judgment that she be paid “ the sum so assessed as the yearly value of her dower, and the like sum on the same day every year thereafter during her natural life.” This
The rule established, therefore, by the Supreme Court of this State touching the breach of the covenant against incumbrances, and its application to this case, is neither unreasonable nor unjust. And having been so long established, I may well conclude this branch of this discussion in the language of Chancellor Kent in Pitcher v. Livingston, 4 John. 1; “On a subject of such general concern and of such momentous interest as the usual covenants in the conveyance of land, the standard for the computation of damages, whatever that standard may be, ought at least to be certain and notorious. The seller and the purchaser are equally interested in having the rule fixed.”
The incumbrance complained of in Shelton v. Pease was a mortgage. The declaration was that the defendant had covenanted to warrant and defend the premises against the mortgage — that the lot conveyed was at the time of the conveyance free from incumbrances suffered by the defendant; and then assigned as breach, that the defendant did not pay the said mortgage, and the plaintiff had paid so much toward the satisfaction thereof. What the court really decided, was that the statutory covenant arising on the words “grant, bargain and sell” was restrained and limited so far as the mortgage was concerned by the after occurring special covenant, “ particularly against the mortgage above described.” And as the plaintiff had declared on the special warranty, inter aha, for “ that said defendant did not pay said mortgage but that the plaintiff paid a large sum in discharge thereof,” there could, under the rule of practice probatum et allegatum be no recovery, because the defendant had not covenanted to pay off the mortgage. That was conclusive of the case; and what follows, to the effect that the mere payment of the mortgage constituted no breach of the covenant of general warranty was a generality, if not obiter dictum. Further on, m the same opinion, the learned judge says, m relation to the special covenant : “ There must be an eviction, or something equivalent thereto, to constitute a breach of the special covenant.” Caldwell v. Bower has nothing m it touching this question outside of the syllabus. The mortgage, alleged to consti
Johnson v. Nyce, 17 Ohio 66, should be read in connection with the following case in the same volume of Nyce v. Obertz, p. 71. The decisions turned principally on the fact that in assigning the dower the “statute (of that state) seems to have been entirely disregarded.” The latter case of Nyce v. Obertz is an -authority directly against the position of appellant’s counsel. The same learned judge who wrote the opinion in both cases, says m the latter that the dower interest would constitute an incumbrance, according to the weight of authority, within the terms of such a covenant, and then concedes that when the same is ascertained by the judgment of a court of competent jurisdiction, “the tenant or covenantee may have his action against the covenantor for indemnity. But before the covenantor can be bound by such judgment and decree it must be m conformity with the statute regulating dower.” Had the decree been in conformity with the statute, there would have been no difficulty as to the rule of damages.
The manner of assigning the dower, in the case under consideration, was in exact conformity with the mode prescribed by statute of this State, and, therefore, “ the tenalit or covenantee may have action against the covenantor for indemnity.”
I had supposed, since the exhaustive treatment of this question in Rawle on Covenants, (ch. 8, from p. 260 to 289,) that a constructive eviction, especially where the dower interest was established by the judgment of a court of competent jurisdiction, and that judgment was paid by the covenantee, was sufficient to entitle the covenantee to an action on the covenant for a breach, Rawle sums up the matter on pages 288, 289, thus: “ It is not necessary that the assertion should be made by a judgment or even a suit, any more than it is necessary that an eviction, when actual,
The motion for rehearing should be denied.