Bircher v. Watkins

HAPTObT, J. The only point about which there can be any difficrrlty in this case, is the one concerning the measure of damages. The state of the pleadings was such as to dispense with the necessity producing the deed, and tiie burthen of maintaining his plea was certainly upon the defendant. In declaring upon covenants, it is generally sufficient for the pleader to negative the words of the covenant, a breach of which is alleged. This rule applies to a covenant of seizen, and of good right and title to convey. It does not apply to covenants against incumbrances. The covenant, that the grantor is “seized of an indefeasible estate in fee simple,” as we have had occasion to remark in previous cases, is a compound one. It embraces the simple covenant of seizen, and also a covenant against incumbrances. If the pleader desires to charge a breach of the simple covenant of seizen, ho should adopt language appropriate for that purpose. If he chooses to negative the words of the compound covenant, as has been done in this case, he subjects himself to the embarrassment which has occurred here. The defendant in reply asserts that ho is seized of an indefeasible estate in fee simple, but fails to give any proof. What, then, is the measure of damages ? The breach is admitted. "It is conceded that there was not an indefeasible estate in fee simple in the grantor, and this may happen from two causes, either because the grantor had no seizen at all, or because his estate was defeasible by reason of a paramount title or an incumbrance which might defeat the title partially or entirely. In the former event the damages would be the purchase-money and interest, [374] and in the latter, the plaintiff would only he entitled to nominal damages, until actual damages had been sustained. This rule seems to he a reasonable one and has been recognized in Collier v. Gamble, 10 Mo. R. 472. The question here is, to which rule shall we subject the defendant, where no proof is offered to sustain his plea? Shall we assume, that because he admits that he was not seized of an indefeasible estate, he was therefore not seized of any estate at all? It is said that if we do not draw this inference, we shift the burden of proof from the defendant to the plaintiff — and this is true so far as incum-brances are concerned, and such has always been the law. We require the plaintiff to aver and prove an incumbrance, if that is the breach relied on. But we do not require the plaintiff to aver anything more in relation to the covenant of seizen, than a breach of it, and the burthen must be upon the defendant t'o show his seizen. In this case he has averred a breach of both covenants or of the compound covenant, without specifying any particular incumbrance or other paramount title. The course of the pleadings, and the conduct of the defendant on the trial, has placed the plaintiff precisely wherq lie ought to have placed himself at the start. IIe was only entitled to nominal damages, since the court could not look behind the pleadings and conjecture what occasioned the breach of the covenant, the want of seizen or the existence of an incumbrimce.(a) Judgment reversed and cause remanded. Footnotes [a] (a) See Sharp v. Colgan, 4 Mo. R. 30, and note; Martin v. Long, 3 Mo. R. 395, and note b.