Cockrell v. Proctor

Henry, J. This was an action commenced in the Barton Circuit Court by plaintiff', to recover damages for an alleged breach of the covenant of seizin, in a deed executed to him by defendants in 1866, conveying the east of the south-west i of section 19, township 82, of range 30, the east of the north-west ¿ of section 8, east J of section 5, southwest i of section 5, east J of north-west i of section 5, north-west £ of north-west {: of section 5, all of section 22, south-west of section 14, and the east J of south-east £ of section 14, all in township 32, range 31, and lying in Barton County. The deed conveyed the land by the words grant, bargain and sell, and there was also an express covenant that the grantors were seized of an indefeasible estate in fee simple in the premises, and the breach assigned was, that said grantors were not, at the date of the delivery of the deed, seized of an indefeasible estate in fee simple in said lands, and plaintiff alleged that they were not then in possession of any portion of said land, and that plaintiff has never been in possession of the same, or any part of them. In his petition plaintiff does not specify any particular incumbrance or paramount title. Defendants by their answer admit the execution of the deed, and aver that they were, at the date of the deed, seized of an indefeasible estate in fee simple in the said land, and that plaintiff entered upon and held the possession of said land under the deed. On the trial in open court plaintiff entered a disclaimer as to damages for breach of the covenant as to the following tracts of said land, viz : east half of section 5, north of north-west 1, and south-west -} of north-west £ of section 5, and the east half of north-west ‡ of section 8. The evidence proved that plaintiff’, or those claiming under him, were at the trial in possession of the last described land; [45] that in 1866, after the execution of the deed, plaintiff entered into the possession of section 22, and that one of his sons built a house upon it, and in 1867 abandoned the possession, learning, as he alleges, that he had no title to the land-. There was no suit against him, or demand made of him, for the possession of the land,' or any portion of it, nor was any portion of the lands in the actual possession of any one else. ^presumption, I. Plaintiff introduced in evidence a deed from Theodosia Smith, administratrix of Albert J. Smith’s estate to himself, conveying to him the east -J of southwest ¿ of section 19, above described, dated March 21st, 1867, the consideration named therein being $560, but at the conclusion of the evidence the court excluded it. The case was tried in the Dade Circuit Court, (to which it had been taken by change of venue), by the court, without the intervention of a jury, and plaintiff had a verdict and judgment for $3,374, and the defendants have brought the case here by appeal. II. Eor plaintiff, the court gave the following declarations of law: First—-The defendants having failed to show 2. instructions, any title in them for section 22 and the east J of the south-east ¿of section 14, and the south-west ¿ of section 5, township 32 of range 31, the finding should be for plaintiff. Second—If the court find from the evidence that plaintiff bought'in a paramount title to the east of the south-west ¿ of section 19, township 32, of range 31, the finding should be for plaintiff, and the damages assessed at the amount paid by said Cockrell for said land, with six per cent, interest from date of payment to date. The third instruction declared the measure of damages to be the value of the land as estimated by the parties, each tract at the price fixed upon it in the trade, with six per cent, interest from the date of the deed, where no possession was had, and from the time that the beneficial possession ceased in any tract of which plaintiff had possession. The defendant asked the court to declare the law as follows, substan [46] tially: that plaintiff, having taken possession of section 22 and abandoned it, could not recover more than nominal damages for that tract; that plaintiff could not, without offering to reconvey, recover more than nominal damages in regard to the east \ of section 14 and the south-west j.- of section 5; that, under the testimony, plaintiff was entitled to nominal damages only. The court refused to give these declarations of law. 3. covenant of seizin : practice: burden o£ proof. III. Defendants alleged seizin in themselves at the date of the deed, and it devolved upon them to prove it, and as they offered no evidence to show , ,. - ,. n , . that they were so seized, the first instruction was properly given. Bircher v. Watkins 13 Mo. 522. After excluding the deed from Smith’s administratrix to plaintiff, there was no evidence to warrant the second instruction given by the court at the instance of the plaintiff. "Why it was excluded, does not appear, but we assume that the action of the court in excluding the deed was proper. Because the court gave that instruction, the judgment should he reversed; but as the cause will be remanded to be retried, we will briefly consider the other questions presented by the record. 4-__. paramount title. IY. The existence of a paramount title, whether asserted or not, is a breach of the covenants of seizin specifically expressed in the deed, as well as of that containecl in the words grant, bargain and sell employed in conveying the lands. Where, .under the deed, the grantee takes possession of the premises conveyed, he can recover only nominal damages until he has been compelled by the assertion of the paramount title to yield the possession to the claimant. Collier v. Gamble 10 Mo. 467, Bircher v. Watkins, 13 Mo. 521, Dickson v. Desire’s admr. 23 Mo. 151, Murphy v. Price, 48 Mo. 247. [47] 5. paramount title: mises: failure to' oedamages. [46] Y. If the lands conveyed had been in the possession of a stranger, holding at the date of the deed under a para [47] mount title, as nothing would have passed to the grantee by the deed, the covenant would have been broken as soon as made, and substantial damages could have been recovered by the grantee. But in the case at bar, plaintiff had actual possession of all of the lands, except two small tracts, and might have taken possession of those, as they were, like the balance, unoccupied, and so continued to the time of the trial. He had no right to abandon the possession of section 22, in the absence of a hostile assertion of a paramount title, and claim substantial damages for a breach of the covenant of seizin. In regard to the tract of land conveyed, which the plaintiff' did not, but might have, taken possession of, the rule is the same. He must act in good faith toward his grantor, and make the most of the title he has acquired, and only yield possession to the hostile assertion of a paramount title, either by a suit to recover the land, or a distinct assertion of the paramount-title and a demand of possession. The second and third instructions were erroneous. Judgment reversed and cause remanded. All concur except Norton, J., not sitting. Reversed.