Mosely ex rel. Beach v. Hunter

Gamble, J., delivered the opinion of the court. The words “grant, bargain and sell,” when used in a deed made in Illinois to convey land in that State, are to be held to contain express covenants, “that the grantor is seized of an indefeasible estate in fee simple, free from incumbrances done or suffered by the grantor, as also for quiet enjoyment against the grantor, his heirs and assigns.” Such is the effect of their statute. In this case breaches are assigned, of each clause of the first covenant, by alleging that Hunter was not seized of an indefeasible estate in fee simple and that the land, a*t the date of the deed, was subject to the incumbrance of an attachment previously levied upon it as the property of Hunter. To sustain the first breach, the plaintiff gave in evidence certain documents to prove outstanding titles under the revenue laws of Illinois, at the time the deed by Hunter was made. The proceedings under the revenue laws of that State resulted in two deeds made by auditors of the State; one to Benjamin Mills, the other to R. H. Peebles. These [329] deeds, as well as all the evidence offered by the plaintiffs, were at first admitted by consent, subject to objections to be afterwards made by defendant’s consent, and upon such subsequent objections, the deeds were excluded from the consideration of the court, sitting as a jury. Upon the first breach, there were also read in evidence by the plaintiff, two patents from the United States, dated on the 14th day of February, 1818, to the soldiers to whom the land was originally granted by the government (it being within the district of bounty lands,) and then gave evidence for the purpose of showing that there were no deeds on record from the original patentees. It appeared in evidence that the plaintiffs went into possession under the deed from Hunter, which is the foundation of this action, and there was no evidence that they had ever been disturbed in that possession by any person claiming title to the land, either under the deeds made by the auditors of the State, or under the title supposed still to exist in the original patentees or their representatives. As the plaintiffs have recovered in the court below more than nominal damages, and as this court has held in the case of Collier vs. Gamble, 10 Mo. Rep. 467; Rees vs. Smith’s ex’r, 12 Mo. Rep. 344, that for the breach of similar statutory covenants, the recovery could only be for nominal damages, unless there was an eviction, there is nothing in the action of the court below in rejecting these deeds, which furnishes a ground for the reversal of the judgment. To sustain the breach on the latter clause of the covenant charging the existence of an incumbrance by an attachment at the time the defendant made the conveyance, the record from.Illinois was read, showing the attachment for the sum of $110, levied upon the land, the judgment, scirie facias and sheriff’s sale of the property conveyed. A certificate was given to the purchaser, and afterwards a sheriff’s deed was made to him, the consideration being five dollars, the amount hid at the sale. A transcript of the record, in an action of ejectment, commenced by the purchaser at the sheriff’s sale against the plaintiff, to recover possession of the land, was at first admitted in evidence. This transcript showed, that the action of ejectment was commenced before this suit was brought, but that during the pending of this suit the action of ejectment was determined, and resulted in a recovery by the purchaser at the sheriff’s sale and an eviction of the plaintiff in this suit. The court below, on motion, excluded all of said record that showed facts occurring after the commencement of this suit. The only purpose for which this record was admissible at all, was to [330] trace the operatiqp of the incumbrance, existing at the time the defendant conveyed the property, to its ultimate consequence in the loss of the property to the plaintiff. The breach of the defendant’s contract consisted in the existence of an incumbrance at the time he made his deed containing a covenant against incumbrances, and it was competent for the plaintiff to introduce and use evidence of any facts down to the time of the trial of the cause, to show the extent to which he was injured by the defendant’s breach of contract. In Brooks vs. Moody, 20 Pickering, 475, Chief Justice Shaw says: “The question then is, whether in an action for breach of'covenant against incumbrances, a plaintiff may recover in damages,’the amount fairly and justly paid for the removal of such incumbrances, if so paid after the action is commenced, and the court are of opinion that he may. The legal ground of action is, not the debt or obligation to pay money, but the breach of the defendant’s covenant. This was broken when the action was commenced, and it is not denied that the plaintiff can maintain the action and as a necessary inducement can recover some damages. The reason why the covenantee cannot recover full'damages without extinguishing the incumbrance, are, first, because he may never be disturbed by the outstanding incumbrance; and secondly, because the defendant, after paying the amount on his covenant, might still be called on by the person holding the outstanding mortgage, on his personal obligation and so might he twice charged. But both these reasons are obviated when the mortgage has been taken up or extinguished by the plaintiff before the assessment of damages.” The same doctrine is maintained in Kelly vs. Lord, 18 Maine, 244; Lefiingwell et al. vs. Elliott, 10 Pick. 204. In Wilcox vs. The executors of Plummer, 4 Peters 182, the Supreme Court of the United States lay: “When the attorney was chargable with negligence or unskilfulness, his contract was violated, and the action might have been sustained immediately. Perhaps in that event, no more than nominal damages may be proved and no more recovered; but oh the other hand it is perfectly clear, that the proof of actual damages may extend to facts that occur and grow out of the injury, even up to the day of the verdict.” We approve the doctrine maintained in these cases, as consonant with the rules cflaw and the dictates of sound reason. The plaintiffs were entitled to their action as soon as the covenant against incumbrances was made, if a valid incumbrance then existed, and if pending such action the incumbrance had ripened into an adverse and superior title ahd an eviction under it had taken place, there would be no propriety [331] in preventing them from tracing the breach of the defendant’s contract to its ultimate effect, although it occurred after suit was brought on the covenant. The conrt of common pleas, therefore, erred in excluding so much of the record in the case of Hamilton against the plaintiff as stated facts occurring after the commencement of this suit This conclusion is attained however, without any labored comparison of the tile of Hamilton with the statutes of Illinois, under which his title was consummated. The attention of the court has not been called to any alleged defects in that title, and therefore its legal sufficiency is not passed upon in this case. The judgment of the court of common pleai remanded for further proceedings. ¡he cause