Hendrix v. Dickson

Ellison, J. Landlord and tenant: action for taxes: parties: continuing breach. An important point made by defendant, as shown by the foregoing statement, relates to whether these plaintiffs, as heirs of Nathan Scarritt, or the executors are the proper parties plaintiffs, defendant contending that a. cause of action like that asserted by the petition accrues to, and can only be pros- ecuted by, an executor or administrator. It is quite true that personalty, including choses in action, goes to the executor or administrator of the estate and that the realty descends directly to the heir (Becraft v. Lewis, [205] 41 Mo. App. 546); and that the executor or administrator is the proper party to prosecute or defend actions relating to personalty or choses in action. Smith v. Denny, 37 Mo. 20. But a covenant to pay taxes on real estate is a covenant running with the land, the substantial breach occurring when the taxes, becoming due and payable, are not paid by the covenantor, but by the covenantee. This is especially true in this case, since the taxes are practically a part of the rent reserved. It is laid down in 2 Platt on Leases, 360, that: “If the lessor be seized of an estate in fee, the reversion at his decease, intestate, devolves on his heir, and such heir * * * and not the executor, is the party to maintain an action for rent falling due, or for covenants running with the land broken after the lessors death.” But in the case before us, it does not appear at what date Nathan Scarritt died, so we are not informed whether there was a failure on the part of the defendant lessee to pay during said Scarritt’s lifetime. But however that may be the substantial right of action on the covenant arose on the payment of the tax incumbrance, and that was done by th,e heirs, and it is altogether probable, as gathered from the dates appearing in tho records, that a part of the technical breaches of the covenant were committed before, and a part after, Scarritt’s decease. On such state of case it is said: “So it should seem that the heir, and not the executor, is the proper plaintiff where there is a continuing breach in the time of both ancestor and heir, but the substantial breach is in the time of the latter.” 2 Platt on Leases, 360. So, therefore, being of the opinion that the heirs are the proper plaintiffs, we rule the point against defendant. v [206] -: lessor’s conveyance: covenant assigned. [205] 2. One of the causes of action stated in plaintiffs’ petition, arises on defendant’s failure to pay taxes as [206] provided, in Mrs. McClanahan’s lease, she having conveyed the property to Nathan S.carritt by *j x x v * general warranty deed. It is contended that this covenant was not assigned by the deed from Mrs. McOlanahan to Scarritt. We must also rule this point against, defendant. Allen v. Kennedy, 91 Mo. 324. In that case the supreme court set out and approved the following from Kimball v. Bryant, 25 Minn. 496: "The covenant is taken for the protection and assurance of the title which the grantor assumes to pass by his deed to the covenantee; and where the covenantee assumes to pass that title to another, it is fair to suppose that he intends to pass with it, for the protection of his grantee, every assurance of it that he has, whether resting in right of action or in unbroken covenant; so that if, before enforcing his remedy for breach of the covenant, the covenantee execute a conveyance of the land, unless there be something to show a contrary intention, it may be presumed that he intended to confer on his grantee the benefit of the covenant so far as necessary for his protection — that is, that he intends to pass all his right to sue for the breach, so far as the grantee sustains injury by reason of it.” --:-: exception. 3. There was a provision in the deed from Mrs. McOlanahan to Nathan Scarritt whereby she restrained the covenants in the deed so that they did n°t apply to the taxes now in controversy. The provision was in the following words at the close of the covenants and warranty contained in the deed: "Except all taxes for the year 1890 and subsequent years.” But this was no more than a refusal on the part of Mrs. McOlanahan to covenant that defendant would perform his covenant. It did not prevent the transfer, or assignment of the right to compel him to do so. [207] -: action on covenant: demand. 4. It was not necessary to demand of defendant that he perforin his covenant before bring-mg suit against him. -: -: sublessee’s assumption. 5. Notwithstanding that the sublessees mentioned in the statement of this cause agreed to pay the taxes, or assumed the obligation of defendant anc^ Collins, and notwithstanding that Nathan Scarritt may have accepted rent from them, this does not relieve defendant of his express agreement to pay them. Whetstone v. McCartney, 32 Mo. App. 430; Jones v. Barnes, 45 Mo. App. 590; Ward v. Krull, 49 Mo. App. 447. The judgment is affirmed. All concur.