Buren v. Hubbell

Smith, P. J. — This is a petition with three counts, the first of which alleges, in substance, that on the fifteenth of March, 1880, the defendant by deed conveyed to John G. Hemley certain real estate containing five and one-half acres, and in the granting clause thereof were the words “grant, bargain and sell;” the deed also contained an express covenant that the defendant was lawfully seized of an indefeasible estate' in fee in said premises, and that he had good right to convey the same; that the said premises were free and clear of any incumbrances done or suffered by him or'. those under whom he claimed, and also the further covenant that the defendant, his heirs and assigns would forever, by said deed, warrant and defend the title to said premises unto the said Hemley, his heirs and assigns, against the lawful claims and demands of all persons whomsoever; that afterwards, on the four-teeth day of May, 1881, the said John G. Hemley by like deed conveyed said real estate to one Samuel H. Bagley; that afterwards on the seventeenth day of — 622 — May, 1881, the said Bagley by like deed conveyed said real estate to the plaintiff. For a breach of the covenant contained in the said deed, from defendant to the said John G. Hemley, it is further alleged in said first count that on the fourteenth day of April, 1873, the defendant made, executed and delivered to the Grundy County Coal Company, a corporation, a deed by which lie sold and conveyed to said coal company “all the •coal and other mineral lying and being under the sui*face of said real estate so conveyed with the right and privilege to enter said real estate beneath the surface thereof and to mine, utilize and bring to the surface and keep and dispose of absolutely all coal and mineral under the surface and in said real estate at any time within forty-nine years from said date; that there was a large and valuable vein of coal under the entire surface of said real estate, and that afterwards the said coal company under said written instrument, and in violation of the covenants contained in said deed from the defendant to said Hemley and to plaintiff as assignee, by force entered upon said real estate and removed therefrom portions of said vein of coal of the value of $1,600, in which amount plaintiff was damaged, etc. In the second count of the petition.it was alleged that the defendant on the eleventh day of May, 1883, by a deed (containing a similar granting clause and covenants to that made by the defendant to Hemley already stated in the first count) conveyed to the plaintiff a certain piece of real estate containing ten acres; that on the fourteenth day of April, 1873, the defendant executed and delivered to the Grundy County Coal Company an instrument in writing by which defendant sold all the coal lying under the surface of said real estate (this being the same lease that is set forth in the first count, and covers the real estate described in both counts, it is unnecessary to set it out again — 623 — here). It was further alleged that said coal company, under said instrument of writing so made to it by defendant, had the right at any time within forty-nine years to enter into the possession of said real estate and dispossess plaintiff of the portion containing coal, etc.; that by reason thereof said coal of the value of $3,000 had become lost to plaintiff, whereby she was damaged, etc. In the third count it was alleged that, on the eleventh day of May, 1883, the plaintiff purchased of the defendant certain real estate — the same as is described in the second count — which defendant undertook to convey by general warranty deed, but- by mistake of the scrivener a different piece was described than that intended; that the plaintiff was delivered the possession of the real estate purchased, and had so continued ever since, making lasting and valuable improvements thereon. The prayer of the count was for a decree reforming the deed according to the intention of the parties thereto, or to require defendant to execute and deliver plaintiff a sufficient deed for the real estate purchased. The defendant interposed a demurrer to the first count on- the ground that it did not state facts sufficient to constitute a cause of action, which was by the court sustained, and the plaintiff refusing to amend, judgment was given accordingly. The defendant’s answer to the second and third counts was, that the said coal company had never entered on said real estate therein described, or in any manner disturbed plaintiff in the enjoyment thereof, and that the coal therein remained undisturbed; that the defendant had secured from said coal company a good and sufficient deed of release of all rights acquired by said company to said real estate, and that the defendant tendered plaintiff a warranty- deed con — 624 — veying to plaintiff a fee simple title thereto. There was a prayer that the court compel the plaintiff to accept the deed, and that the suit abate, etc. There was a trial on the second and third counts, which resulted in judgment in favor of plaintiff for $1, and from which she has prosecuted her appeal. I. The plaintiff contends that the objection raised by the demurrer that the petition did not state facts sufficient to constitute a cause of action was not well taken, and ought not to have been sustained by the trial court. The defendant, prior to the time of making the deed to Hemley, executed alease to the coal company for forty-nine years, and this constitutes the alleged breach of the covenant contained in that deed against incumbrances. It is, too, observed that the suit is not by the covenantee, Hemley, in that deed, but by the plaintiff claiming title through the former under a mesne conveyance by deed. It is the well settled law in this state that a covenant against incumbrances is a covenant in presentí and is broken the instant it is made. If the covenant is broken at all, its breach occurs at the moment of its creation; it is that a particular state of things exists at that time, and if this be not true, • the delivery of the deed which contains such covenant causes an instantaneous breach. Where the incumbrance is of such a character that cannot be extinguished, such for example as an easement or servitude, an existing lease and the like, in such cases the entire damages are at once to be ascertained and assessed to the covenantee, according to the injury arising from its- continuance. But where the incumbrance is a mortgage, judgment or tax lien, and is of a kind that does not effect the possession of the covenantee, he may pay off the same and free the premises. When, therefore, the encumbance is of the — 625 — former class, the entire damage should be at once assessed, for there is no way of removing it by purchase while it exists, but in ease of an encumbrance of the latter class, the covenantee cannot have more than nominal damages until he extinguishes the incumbrance and thereby suffers substantial damages. It was ruled in Winningham v. Pennock, 36 Mo. App. 688, and Barnhart v. Hughes, 46 Mo. App. 318, that covenants against this latter class of incumbrances run with the land and remain alive in the hands of a subsequent grantee who may be compelled to extinguish a pre-existing encumbrance, for it is the substantial breach which occurs for which he may sue on the covenant for the damages he has sustained. Dickson v. Desire’s Adm’r, 23 Mo. 151. Where the encumbrance is of the former class, the breach extinguishes the covenant and renders it incapable of running with the land. The covenant is. turned into a mere right of action which can be taken advantage of only by the covenantee or his personal representative, and neither pass to an heir, devisee, nor subsequent purchaser. Blandeau v. Sheridan, 81 Mo. 545; Kellogg v. Malin, 62 Mo. 429; Taylor v. Hutz, 87 Mo. 545; Kellogg v. Malin, 50 Mo. 496. The breach which plaintiff has in her petition alleged, extinguished the covenant, and therefore it was incapable of running with the land. It was merged into a right of action in Hemley, the covenantee, and could not be taken advantage of by a subsequent purchaser claiming by. deed from him. The entry by the coal company under the lease constituted no breach of the covenant in question, for, as we have seen, there had been a breach -of that covenant committed at the instant the deed was made, which breach had extinguished the covenant by converting it into a new right of action in the cove — 626 — nantee. The right of substantial recovery in this case, which accrued at the instant the deed was made, set the statute of limitations in motion. It inevitably follows from these considerations that the trial court did not err in sustaining the defendant’s demurrer to the first count of plaintiff’s petition. II. At the trial, the court, at the instance of the defendant, over the objection of the plaintiff, gave this instruction: “Even though the finding should be for plaintiff, yet if the court find from the evidence that the coal, if any there was or is under said lands at the time of the institution of this suit, and at all times prior, was and now is in its natural state, and that its value, if any it has or had, has not been affected or •changed, and further finds from the evidence that on the twenty-third day of November, 1891, defendant received from the Grrundy County Coal Company the deed read in evidence releasing and conveying to him the coal and mineral under said lands, and that at said time said coal company released and conveyed to defendant all its interest in said lands and that thereafter and on the twenty-third day of November, 1891, defendant made and tendered the conveyance read in evidence, to plaintiff, then the finding cannot be for plaintiff for more than nominal damages.” The trial court did not err in giving this instruction. There was evidence adduced tending to support its hypothesis. The measure of damages it announces is fully in accord with that declared in Reese v. Smith, 12 Mo. 345, where the facts are very much as here. The ruling in that case disposes of this branch of the plaintiff’s appeal. The judgment must be affirmed. — All concur.