Winningham v. Pennock

Ellison, J. — The deceased, in his lifetime, by his deed containing the words grant, bargain and sell, and the usual special covenant against incumbrances, conveyed to one Sophronia Stone, for the consideration, as expressed in the deed, of three thousand dollars. Sophronia Stone, by a similar deed, conveyed the same property to plaintiff. At the time of the conveyance from Bowman to Stone there was an incumbrance on the lot; there being a special assessment against it under proceeding had by the city authorities of the City of Kansas. Plaintiff was compelled to pay the assessment, which had taken the shape of a special tax bill, amounting to the sum of $557.56, and for this sum he has brought this action against the estate of Bowman and seeks to hold his estate under the covenant in his deed against incumbrances which plaintiff claims is a covenant which runs with the land. The defenses interposed necessary to notice are: First. Thata covenant against incumbrances does not run with the land; and, second, that the deed from Bowman to Stone was a deed of gift and without a valuable consideration. The covenant against incumbrances is a covenant in prcesenti and is broken eo instanti it is made, and is therefore said generally not to be a covenant which will run with the land. The reason such covenant is held not to run with the land is that the action accrues complete, and the covenant inures to the benefit of him who suffers the breach and can not be transferred by him dcTwn the line of title. “The_breach extinguishes the covenant [693] and renders it incapable of running with the land.” Dickson v. Desire, 23 Mo. 151, 161. It is said by the court in Chambers v. Smith, 23 Mo. 174 and Wyatt v. Dunn, 93 Mo. 459, that, “If there be a total defect of title, defeasible and indefeasible, and the possession have not gone along with the deed, the covenant is broken as soon as it is entered into, and can not pass to an assignee upon any subsequent transfer of the supposed right of the original grantee. In such case, the breach is final and complete ; the covenant is broken immediately, once for all, and the party recovers all the damages that can ever result from it.” It would appear to be clear from these authorities that in the hands of whomsoever the breach occurs and the right of action accrues, there it stops. Such right of action may be assigned, of course, as any other chose in action. And it is held in Allen v. Kennedy, 91 Mo. 324, that a deed with the usual covenants will of itself operate as a transfer or assignment of such right to the grantee. That case was a covenant of seizin, where the original grantee got neither title nor possession. The same ruling would perhaps not be made on a covenant against incumbrances. It would probably not be held that the -original grantee paying off an incumbrance, but not enforcing the covenant against his grantor, would be held to have assigned his right of action to a grantee merely by making him a warranty deed to the premises. But be this 'as it may, the breach which stops the running of the covenant must be a substantial breach and not merely a nominal one, and the .cause of action must be such as to permit a substantial recovery. So it is said the covenant runs with the land till there be a substantial breach. The matter maybe illustrated thus : If a grantee find an easement on the premises, an easement being an incumbrance, which prevents his use or [694] occupation, a substantial breach exists the moment he gets his deed and he has a substantial right of action on the covenant which, except as it may be affected by the case of Allen v. Kennedy, supra, is not transferred to subsequent grantees. This was the case in Blondeau v. Sheridan, 81 Mo. 545. But, if he finds a mortgage, judgmént, or tax lien on the premises, here, while the covenantis broken eo instanti, and may be sued upon and nominal damages recovered, yet it is' not so in substance, it is only technically so, for the grantor may himself remove the incumbrance before it can disturb or injure the grantee; and so, in such instance, the covenant against such incumbrance will run with the land, and remain alive in the hands of a subsequent grantee who may be compelled to remove the incumbrance, for then the substantial breach occurs and a substantial recovery may be had. The second defense that the intestate’s deed to Miss Stone was a deed of gift, and not for a valuable consideration, can not be allowed. The deed recites a valuable consideration of three thousand dollars and the grantor in such deed is estopped from showing that it was not a valuable consideration. The successive grantees have a right to rely upon the kind of consideration named in the deeds in their chain of title. Ordinarily the grantor may show a different consideration from that expressed in his deed, though it must be of the same kind or nature. Ordinarily he may show it was for a different amount from that expressed or that, it was property instead of money. But in a case like this, he will not be permitted to show that it was a good consideration as distinguished from a valuable consideration, as these terms are known to the law. The defendant then being concluded by his deed, as to there being a valuable consideration, can not be permitted, in a suit on the covenant against incumbrances [695] to show the amount of the consideration, as that would be an immaterial or irrelevant matter. In such action, unlike an action on a covenant of seizin, the a,mount of damages depends upon what the covenantee has been compelled to pay to extinguish the incumbrance, if it be a fair and reasonable price. Henderson v. Henderson, 13 Mo, 151; City of St. Louis v. Bissell, 46 Mo. 357; Kellogg v. Malin, 62 Mo. 429. ' Prom the foregoing considerations it follows that the judgment should be affirmed, and it is so ordered. Smith, P. J., concurs ; Grim, J., not sitting.