Holladay v. Menifee

Philips, P. J. I. This action must fail for the reason that plaintiff has failed to make proof of failure of title to the Kentucky land. Had the deed made by the executor to plaintiff contained full covenants of title and for quiet enjoyment, after the purchaser was let into the possession of the premises thereunder, there could be no recovery of substantial damages without proof of eviction, or its equivalent under a paramount title. While the grantee may recover nominal damages for breach of covenant of title, on proof of outstanding paramount title subsisting at the time of making the deed, without an actual eviction; yet where he is admitted into the possession of the land under the deed of conveyance, to entitle him to recover back the purchase money from the covenantor, he must prove failure of title and eviction, or a surrender in obedience [215] thereto. Collier v. Gamble, 10 Mo. 467; Shelton v. Pease, 10 Mo. 474; Murphy v. Price, 48 Mo. 250; Dickson v. Desire, Adm'r, 23 Mo. 163-4; Cockrell v. Proctor, 65 Mo. 41. Certainly the plaintiff can claim no greater right in this action, based upon the alleged parol statement of the executor and Menifee, than he could, had such insurance been incorporated and expressed in the deed. The gravamen of his complaint is the loss of the Kentucky land by the assertion of a paramount title. To maintain his action, therefore, it devolved upon him to make proof of this essential fact. He assumed this burden at the trial, and undertook to meet the requirement of his averments in the petition by putting in evidence the record of the proceedings and judgment in the ejectment suit in Kentucky. It may be admitted that that judgment was admissible for the purpose of showing the fact of an eviction. But, without more, it was clearly res inter alios acta, for every other purpose, and furnished no evidence as between these parties, of an outstanding superior title. Field v. Hunter, 8 Mo. 132; Walker v. Deaver, 79 Mo. 678. In Koontz v. Kaufman, 31 Mo. App. —, (decided at this term of court), this question is fully considered. These defendants were not parties to the suit, and did not even have notice of its pendency. II. As to the verbal promises, alleged to have been made by the defendant Frank Menifee to plaintiff, after the rendition of the judgment in ejectment, it is sufficient to say it cannot support this action. If it had any legal force, it could not create any actionable obligation against the other defendants herein. No authority is shown for him to speak for, or bind, his co-defendants in the matter. In the second place, if any action were predicable thereon, as the promise was made in 1876, more than five years next before the institution of the suit, the action would be barred by the statute of limitations. The action would be based upon a personal [216] contract or undertaking, and any judgment thereon would be purely in personam, as distinguished from a real action, and, therefore, the five years, and not the ten years, limitation would apply. Hunter v. Hunter, 50 Mo. 450, 451. Furthermore, even if such promise had any valuable consideration to support it, the petition does not count upon it. The averment respecting it seems to have been thrown in as a mere “makeweight.” The bill is framed for equitable relief, and seeks to pursue a trust fund, by implication, into land, and to charge the land with payment of plaintiffs claim. No judgment in personam could go thereon ; and none such evidently was contemplated, as one of the defendants, who owned a joint interest for life in the land, is a feme conert. III. It would be a self-imposed labor to discuss the other questions raised on this appeal, as no matter what our opinion as to them might be,' the result must be a judgment of affirmance, which would conclude this action. The other judges concurring, the judgment of the circuit- court is affirmed.