Coleman v. Lucksinger

GANTT, J. — This action was commenced in the circuit court of St. Clair county, Missouri, to recover ten thousand dollars for breach of covenants of seizin and warranty in a deed executed by the defendant Lucksinger,' a resident of St. Clair county, Missouri, to Charles C. Henry of Jackson county, Missouri, of date June 20, 1899, conveying certain lands described as surveys 13 and 25 in block 230, Foley county, in the State of Texas, and wherein the consideration w;as expressed to be “one dollar and other lands.” Subsequently Henry conveyed the same lands to the plaintiff by deed dated April 19, 1902, wherein the warranty was special only and the consideration “five dollars and exchange of property.” This action was begun September 17, 1904, in St. Clair county, Missouri, fox the breach of the said covenants of the defendant to Henry. The plaintiff alleging that she was damaged in the sum of ten thousand dollars, because the title to said lands had entirely failed, and the measure of her damages was the market value thereof, which she alleged to be ten thousand dollars. The answer of the defendant was a general denial. A jury was waived in the circuit court and the cause was submitted to the court upon the pleadings and the evidence and judgment was rendered for the plaintiff for the sum of one dollar. From that judgment she has appealed in due form. The facts of the case are practically undisputed. — 7 — As already stated, tlie defendant, on June 20, 1899, being tben and at the time of the commencement of this suit, a resident of St. Clair county, Missouri, executed and delivered to Charles 0. Henry, of Jackson county, Missouri, a deed with covenants of sei-zin and warranty to the said lands in Texas, and thereafter on the 19th of April 1902, Henry and wife by a deed of special warranty conveyed the same lands to plaintiff. Plaintiff introduced evidence tending’ to show that defendant had no title whatever to the land, which his said deed purported to convey to Henry, and it was admitted that neither Henry no,r the plaintiff was ever in the actual possession of said land. The evidence further tended to show the value of the Texas land as follows: W. H. Eagin testified that if the land was dry land -it was worth one dollar per acre; if. it had living water on it, it was worth four or five dollars per acre, but the witness could not state of his own knowledge whether the land had living water on it or not. Charles C. Henry testified that the defendant told him that there was a creek, which went through both sections, and there was a little timber along the creek, but it was mostly prairie; that it was pasture land, and the consideration was that it was worth five dollars per acre; that defendant placed a value of six thousand dollars upon the Texas land and the witness, Henry, placed the same value upon the property which he traded defendant for the said land, but he supposed that this was more than the property was worth. Witness never saw the land in Texas. The plaintiff did not attempt to show the consideration she paid Henry for deeding said property to her. She did not show that she had paid the five dollars recited in the deed, nor that she had conveyed any other property to him as mentioned in the deed. The cause was tried upon her part on the theory that it was of no consequence what damages, if any, she — 8 — naturally sustained, but that ber measure of recovery should be the value of the lands described in defendant’s deed to Henry, without regard to the consideration passing from her to Henry. There was no evidence as to the value of the property which Henry conveyed to the defendant in consideration of the conveyance to him of the property in Texas. I. Logically the contention of the defendant that this action was local in its character and could neither be brought nor maintained in this State, because the covenants of warranty and seizin related to lands in Texas, presents the first question for decision on this record. The proposition, in order to be of any value to the defendant in this case, must deny the jurisdiction of the circuit court of St. Clair county over the subject- . matter of this action, because if it were a mere question of jurisdiction over the person, the appearance of the defendant and his answer to the merits effectually waived any question of the jurisdiction over his person. At common law no local action could be maintained out of the jurisdiction in which it arose, even though the result in many instances would be to deprive a party of all remedy, and where the action was brought by a remote grantee of the land on a covenant which ran with the land, the covenantee’s right of action was based upon privity of estate and not on privity of contract, and the action was deemed local and must have been brought in the place or county in which the land lies. [8 Am. & Eng. Ency. Law, p. 222; Birney v. Haim, 2 Litt. (Ky.) 262; White v. Sanborn, 6 N. H. 224; Lienow v. Ellis, 6 Mass. 331; Clark v. Scudder, 6 Gray (Mass.), 121.] We concede that this is the settled common law rule, and the courts of the different states in our — 9 — Union, which have maintained this doctrine, have done so nnder stress of the common law, bnt, in onr opinion, our statute providing for the place of bringing of suits, sections 562 and 564, chapter 8, article 3, Revised Statutes 1899, has changed this rule and this action on a covenant of seizin or warranty is not one required to be brought in the county in which the land lies. In Oliver v. Loye, 59 Miss. 320, this question arose and Judge Campbell, speaking for the Supreme Court of that State, while recognizing the common law rule as to local and transitory actions, said: “Originally, all actions were local, and great regard was had to place, so that every material allegation of pleading had to be accompanied by the averment of a place, in order that a jury might be summoned from the proper neighborhood, if issue should be taken on any of such allegations. The courts, in order to relieve against the difficulties which arose from the necessity of the proper venue in every action, took a distinction between matters which were local and those which were transitory, and invented a fiction whereby actions for causes of a transitory character, wherever they arose, might be maintained without regard to locality, ‘while no cognizance could be taken of local actions save when a jury of the county could be summoned to try them.’ A result was that for an injury to the person or chattels, and for a breach of any contract, even if it related to land, a remedy might be had in the courts of another state or country than that in which the injury was done or in which the land lay. In other words, if the action was transitory and not local, it was maintainable anywhere. “The courts in England soon freed themselves from the fetters of locality, as to all causes of action of such nature that they might arise anywhere, and by means of falsehood, politely called fiction, and stated under a videlicet, which was an apology for not telling the truth, maintained actions on such causes of action — 10 — as arose out of the territorial jurisdiction of the courts of England. But such causes of action as could from their nature arise only in one place, and therefore were considered as local, and to he redressed only hy local actions, did not arise with the frequency of the other class, and did not press upon the courts sufficiently to induce them to include them in the fiction invented to sustain the other class of actions, and as to them the courts continued bound by the idea, of the place at which they arose. Therefore it is that courts governed by the common law as to actions and process have felt bound to deny a remedy for causes of action arising abroad, which could be redressed only by local actions. Tried even by this rule an action might be maintained in the circuit court of Copiah county, by the appellee against the appellant, for by our law it is not local but transitory. The only local actions under our statute are ejectment and actions of trespass for injuries to land. They must be brought in the county in which the land lies. All other actions must be brought with reference to the person of the defendant. “The common law distinction of local and transitory actions does not exist here. The statute alone governs, and we cannot disregard it, and, because under the common law no remedy could be had by the as-signee of a covenantee in a covenant of warranty of title of land lying in another state, deny a remedy in the courts of this State, which does not treat such an action as a local one. The courts which have held such an action not maintainable have done so under stress of the common law, which they felt so bound them as to constrain them to do what reason revolted at. Happily, we are freed from the constraint of this absurd rule, and loot to our statutes to see what actions may be maintained by our courts.” In Tillotson v. Prichard, 60 Vt. l. c. 104, it was said: “The defendant contends that this court has no jurisdiction of the action; that it is local and can — 11 — only be maintained in the state where the land lies. Such, undoubtedly, was the rule at common law. By that law, if the action for the breach of a covenant was founded upon privity of contract it was transitory; e. g., covenant between the original parties; but if upon privity of estate, it was local. By this rule, all actions brought by the assignee of an estate conveyed with covenants running with the land, against the covenantor, to enforce such covenants, were local. In covenants concerning land, an assignee of the land is a stranger to the personal contract between the parties thereto; he is not privy to it; and the only right he has to maintain an action in his own name for their breach, is upon those covenants which ‘run with the land,' or in other words, those which follow the interest demised; and hence the action is said to be founded upon privity of estate. It is when the right or obligation created by the covenant is attached to the interest conveyed or to the estate out of which it is created, so that the right or obligation upon an assignment of the estate, devolves upon the assignee. [Goulds Pl., chap. 3, sec. 118, div. 2; Chitty Pl. 270.] But it is argued that the action is local, for that in case of a judgment against the defendant he is entitled to an order from the court requiring a conveyance to him from the plaintiff of the lands in controversy, and the order could not be effectually made by a court in this State; and cite the cases of Catlin v. Hurlburt, 3 Vt. 403, and Shorthill v. Ferguson, 47 Iowa 284. We do not say that the defendant is entitled as a matter of right to such an .order. The latter cáse was in equity and the court held that before it would enter judgment for the plaintiff he must tender a conveyance of the land to the defendant; the same result being reached in the other case cited, by stay of execution. The judgment of the court in such cases does not affect the title to the land, by any direct action or process, against the land itself; but the court having ob — 12 — tained jurisdiction of the person of the owner it may, in a proper case, decline to enter judgment, or, it may stay execution after judgment, until he make such conveyance as justice requires him to do, as a condition of obtaining judgment and execution, Indeed cases in equity go much farther. [Rorer on Int. St. Law, 207, 211.] The judgment in no way affects the real estate; it is in personam, sounding in damages only. But it is enough to say that the common law, as to certain actions, including the one at bar, being local, has been superseded by our statute, regulating the places in which actions shall be brought, and none are local unless made so by statute. [Hunt v. Pownal, 9 Vt. 411; June v. Conant, 17 Vt. 656; Univ. of Vermont v. Joslyn, 21 Vt. 52.] This action by our statute is transitory. ’ ’ The Supreme Court of Indiana in Coleman v. Lyman, 42 Ind. 289; was confronted with this same proposition, and that court held that the statute of that state had determined where actions must be brought, and after citing three sections of their statute which provided, in short, that actions must be commenced in the county in which the subject of the action was situate, first, for the recovery of the real property, or an estate or interest therein, for the determination in any form of such right or interest and for injuries to real property; second, for the partition of real property; third, for the foreclosure of the mortgage of real property, and certain other sections providing for suits against corporate bodies and for the contesting of wills, or the establishment of the same, and then there was another section which provided that “in all other cases the action shall be commenced in the county where the defendants or one of them has his usual place of residence,” the court then proceeds to say, that the statute of that state must govern, and pointed out that the action for convenant of seisin was not an action for the recovery of real property or of cm estate — 13 — therein, within the contemplation of that section. So in this State, by one general system onr Legislature has provided for the venue of all civil actions. Section 562, Revised Statutes 1899, has reference to the residence of the defendant, and section 563 provides for the prosecution of actions in ejectment and replevin in the county where the specific property is sought to he recovered or seized, and section 564 provides that suits for the possession of real estate, or whereby the title thereto may he affected, shall he brought in the county where such real estate or some part thereof is situate. Section 4345 provides for the foreclosure of mortgages of real estate in the county where any part of the mortgaged premises is situated. And section 4374 provides for the bringing of partition suits in- the county in which the lands sought to he partitioned are situated. In a word, our Legislature has completely altered the rule of the common law and provided for every contingency as to the bringing of suits, and it must be held that the common law rule as to this action no longer obtains in this State. Many decisions of this court illustrate what is meant by “title to real estate” being involved. It is now the settled rule of adjudication that in order to give this court jurisdiction on the ground that title to real estate is involved, it must appear that the title will he directly affected by the judgment of the court. It will not suffice for it to be incidentally, collaterally or even necessarily inquired into if the judgment can be satisfied by the payment of money. [Price v. Blankenship, 144 Mo. 203; Hilton v. St. Louis, 129 Mo. 389; Barber Asphalt Co. v. Hezel, 138 Mo. 228.] In Luther v. Brown, 132 Mo. 72, it was expressly ruled that the title to real estate was not involved in a suit upon covenant of warranty, this court saying, among other things: “If a judgment was rendered because of a defect of title to the real estate named, it would sound in damages and be personal against de — 14 — fendant and no decree ox judgment would be entered that could in any wise involve or affect the title of real estate, different from the way that all other real estate to plaintiff belonging might be affected.” To the same effect, Railroad v. Mahoney, 42 Mo. 467; Gregg v. Railroad, 48 Mo. App. 499. In our opinion this is not a case affecting the title to real estate within the meaning of section 564, Revised Statutes 1899. II. Having reached the conclusion that the title to the land is only incidentally involved in the record, we are brought to appellant’s second point, to-wit, “By the law of what State is defendant’s liability to be ascertained?” The lands attempted to be conveyed are in Texas, but plaintiff has not pleaded the law of Texas nor was any attempt made to prove it in the evidence. By a long line of adjudications, it has been ruled that the courts of this State will not take cognizance of the laws of a foreign state which have not been pleaded or proven. [Hazelett v. Woodruff, 150 Mo. 539; Charlotte v. Chouteau, 25 Mo. 465; Roll v. Smelting Mining Co., 52 Mo. App. 60.] Moreover, plaintiff relies entirely upon Missouri decisions to support his claim for damages and he must be held to have elected to rely upon our laws for a recovery. In the absence then of any attempt to show that defendant’s liability under the laws of Texas was otherwise than by the laws of Missouri, this court will apply our own laws in determining defendant’s liability on his covenant of seizin. [Hazelett v. Woodruff, 150 Mo. 534, and cases cited.] III. The defendant in support of the judgment of the circuit court contends that conceding all the covenants were broken when made and that neither title nor possession passed from the defendant to Henry, his covenantee, nor from Henry to the plain — 15 — tiff, then there was no privity of contract between the plaintiff and the defendant and plaintiff cannot maintain this action. Without restating the general law as laid down in the text-hooks and cases as to the covenant of seizin, it is sufficient for the purposes of this appeal to refer to some of the adjudications of this court. In Allen v. Kennedy, 91 Mo. 324, the petition declared on the covenants of seizin and warranty. Judge Black, speaking for this court, said: “As to the covenants of seizin of an indefeasible estate in fee simple, the claim is, that this covenant, if broken at all, is always broken when made, and does not run with the land. Whatever may be the rule elsewhere, with us, it is more than a covenant in the present tense. It is rather a- covenant of indemnity, and it has often been held that it runs with the land to the extent that if the covenantee takes any estate, however defeasible, 'or if possession accompanies the deed, though no title pass, yet, in either event, this covenant runs with the land and inures to the subsequent grantee, upon whom the loss falls. [Dixon v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 174; Maguire v. Riggin, 44 Mo. 512; Jones v. Whitsett, 79 Mo. 188.] “Both covenants in the Kennedy deed were broken before the plaintiff purchased; for Riddle, the owner of the title, had taken possession under it, and Patterson was without title or possession. On this state of the case the contention of the defendant is, that covenants only run with the land until breach; that they then become choses in action, which cannot be assigned. Many authorities do hold that choses in action cannot be assigned so as to enable the assignee to sue in his own name at law, but that is not the law of this State. Damages arising from the breach of the covenants in a deed may be assigned, and when assigned, the as-signee, and he alone, can sue. [Van Doren v. Relfe, — 16 — 20 Mo. 456.] The only remaining question is, whether the deed to plaintiff will operate as an assignment of the prior covenants so as to protect the assignee as to the damages he has sustained. As having some hearing upon this question, it may be stated that, by our statute, any person claiming title to real estate, may, though there be an adverse possession, convey his interest as if he were in the actual possession.” In support of the proposition that the covenants passed by the subsequent deed, the learned judge quoted with approval, Kimball v. Bryant, 25 Minn. 496; Scofield v. Iowa Homestead Co., 32 Iowa 318, and Wead v. Larkin, 54 Ill. 498, and then concludes his opinion as follows: “As our covenant of seizin runs with the land, what is there said as to the covenant of warranty is equally applicable to it. The Patterson deed contains full covenants, and it was certainly the purpose to transfer to plaintiff whatever covenants and assurances the grantor held, whether broken or unbroken, and no good reason is perceived why the intention of the parties should not be made effectual, instead of being frustrated and wholly defeated.” In Johnson v. Johnson, 170 Mo. 1. c. 49, the ease of Allen v. Kennedy, supra, was followed and approved. Learned counsel for the defendant quoted and relied upon the decision of this court in Blondeau v. Sheridan, 81 Mo. 545, but it is evident from the reading of that case that while the court held that a covenant against incumbrances was a covenant in prae-senti and did not run with the land, and was not assignable at law, it did hold that a covenant of seizin ran with the land and that a remote covenantee could recover thereon against a remote covenantor. And in our opinion there is no conflict whatever between the decision in that case and the subsequent opinion in Allen v. Kennedy, 91 Mo. 324. Accordingly we answer the query of the defendant in the affirmative, to-wit, that a cotenant of seizin of — 17 — an indefeasible estate in fee simple, which is broken at the.time that it is made, runs with the land, so that a subsequent grantee can maintain an action for damages for breach thereof against the original coven-antor. IV. The only question upon which the plaintiff appealed to this court was as to the measure of damages to which she was entitled, and her contention is that she is entitled to recover the full value of the land at the time of the execution of the deed, whereas the defendant insists that the full measure of plaintiff’s damages is the amount of purchase money which she paid, with interest. In Matheny v. Stewart, 108 Mo. 73, Judge Macfarlane, speaking for this court, said: “The rule of damages for breaches of warranty in the conveyance of land, in case of total failure of title, has ever been limited in this State to the purchase money paid, with interest thereon, and costs.” Citing Dickson v. Desire’s Admr., 23 Mo. 166; Hutchins v. Rountree, 77 Mo. 500; Lambert v. Estes, 99 Mo. 608. In Hazelett v. Woodruff, 150 Mo. 541, this court said: “The measure of damages upon breach of covenants of seizin and the right to convey is as a general rule, the purchase money, interest and costs. No case that we have seen has extended the rule beyond this.” Accepting this as the settled doctrine in this State and applying it to the facts in evidence, it appears' that the defendant in his deed to Henry conveyed the land in question for the consideration of one dollar and other lands. There was no proof whatever as to what other lands were referred to in this description, nor what their value was. The court gave plaintiff judgment for one dollar. Speaking to this point in Allen v. Kennedy, supra, Judge Black said: “The plaintiff concedes that the full measure of his damages — 18 — is the amount he paid, with interest. For proof of damages he relies alone on the recital of three hundred and fifty dollars consideration paid by him in his deed from Patterson; and the question is whether this made out a prima facie case. As to the parties to a deed, the consideration clause is only in the nature of a receipt and is open to explanations and contradictions, not for the purpose of defeating the deed as a conveyance, but for the purpose of showing the true consideration. [Fontaine v. Boatmen’s Savings Institution, 57 Mo. 552; Wood v. Broadley, 76 Mo. 33.] Generally, however, the recital in the consideration clause is not evidence of the amount paid, or the value of the premises as to third persons.” As there was no proof of the amount of the consideration paid by the plaintiff or by Henry to the defendant, we think the court correctly awarded nominal damages only and that plaintiff has no standing in court to complain of the verdict of one dollar in her favor, and accordingly the judgment is affirmed. Valliant, C.J., Fox and Lamm, JJ., concur; Burgess and Woodson, JJ., concur in separate opinion; Graves, J., not sitting.