Langenberg v. Chas. H. Heer Dry Goods Co.

Bond, J. — This is an action for a breach of covenants in a deed to land. * * * It was submitted to the court without a jury and a judgment rendered in favor of plaintiff for $375, from which defendant appeals. On the trial the following facts were shown: [18] About the first day of August, 1893, the Chas. Heer Dry Groods Company as the owner of the premises in question leased the same in writing to Wm. B. Schmidt for a term of three years for the rental value of $150, payable at the end of each year. On the thirteenth of November following it conveyed the same premises by warranty deed to the individuals composing the firm of Z. T. Bradley and Company, and the latter firm in May, 1894, conveyed the land to the plaintiff. While the statutory words “grant, bargain and sell,” were used in both deeds, the deed to plaintiff limited the effect of these terms to acts done or suffered by his grantors. Before the execution of its deed to Bradley and Company by the Chas. Heer Dry Groods Company, a corporation, certain individuals who were stockholders therein, entered into a contract with Bradley and Company to secure a termination of the lease existing upon said premises within one year. This contract was assigned to plaintiff by Bradley and Company. Plaintiff brought suit thereon and recovered a judgment for $33, which was paid. Thereafter plaintiff brought an action for the forfeiture of the lease of said premises on account of the failure of the tenant to comply with the terms of the lease to him as to sowing clover seed. This being decided in favor of the tenant, plaintiff brought another action against him for the possession of the premises for failure to pay rent reserved. This suit was ultimately determined in favor of the plaintiff in this court. Langenberg v. Schmidt, 69 Mo. App. 281. There was evidence tending to show that the rental value of the premises was $150 per annum. The damages claimed in the present action are the rental value during the time plaintiffs were kept out of possession of the premises by the lease of the defendant. There was evidence tending to show that prior [19] to the dispossession of the tenant he paid the rent accruing under the lease to him to the president of the defendant, except those due for the first year of his tenancy, which was paid to the plaintiff. The defenses pleaded are res judicata, estoppel and non-assignability to plaintiff of the covenants raised by the statutory terms in the deed from defendant. The first two objections need not be discussed, since the record does not disclose any former adjudication of the issues herein between the present parties or any matter of estoppel on the part of plaintiff to pursue the remedy now sought. The important question is whether plaintiff under the conveyance to him can allege a breach of defendant’s covenants in the deed made by it? The effect of the terms used in defendant’s deed was to obligate it to make good the three statutory covenants created by the use of the words “grant, bargain and sell.” This action can not be supported on the statutory covenant against incumbrances, for the incumbrance shown by the record being a valid lease for a term of three years was not removable until the expiration of its term, and hence (in the absence of words of special assignment) extinguished the running of that covenant beyond the first-grantee of defendant. Buren v. Hubbell, 54 Mo. App. loc. cit. 624, and citations; Blondeau v. Sheridan, 81 Mo. 545. Nor can the present action be supported on the covenant for further assurance, for there are no facts in this record calling for the application of that covenant. This leaves for consideration only one other covenant, which is the first one arising from the use of the statutory terms, and is, to wit, “that the grantor was at the time of the execution of such conveyance seized of an indefeasible estate in fee simple” in the real estate. [20] Ct7ansmSu>rieken [21] Lbíoach X'enant [19] When the covenant for seizin was introduced in the colonies it was generally expressed by the terms “is [20] lawfully seized,” “or has a good and sufficient seizin,” or similar words, and although these terms imported in England at that time seizin of an indefeasible estate, the English construction was not adopted in many of the American courts, it being held by the latter that a covenant so expressed did not require the grantor to have indefeasible estate and was not broken, if actual seizin, however tortious, was transmitted under color of title to the purchaser. Rawle on Covenants for Title, secs. 41 and 42. This variance on the part of some of the American courts from the English construction may account somewhat for the conflict in the decisions of some of the states as to the meaning of the covenant of seizin. See 4 Am. and Eng. Ency. of Law, title Covenant, p. 478, notes headed “Missouri Doctrine, and Cause of Conflict,” and cases cited. With us, however, the English doctrine as to the extent of this covenant has been established by the expi'ess language of the statute of conveyances. R. S. 1889, sec. 2402. The force of this covenant in Missouri, binds the grantor to assure “the very estate in quantity and quality” which he undertook to convey. Whether it is broken depends upon the facts showing impairment of the title and estate granted. If these exist, the covenant is necessarily broken when entered into and a cause of action for nominal damages, at least, at once arises. Whether substantial damages may be then recovered depends upon the nature of the outstanding right or title as to the entirety of the damages thereby occasioned and their computability in one action. Eagan v. Martin, 71 Mo. App. 60, and cases cited; Taylor v. Heitz, 87 Mo. 660. Notwithstanding this ' covenant if broken at all, is broken when raade, still it is held by our courts to be one that runs with the land and transmissible, without words of special assignment by a deed [21] from one grantee to another whenever the unrestricted statutory terms creating it are used in the instrument of conveyance. Allen v. Kennedy, 91 Mo. 324, and cases cited; affirmed in Foote v. Clark, 102 Mo. 406; affirmed in Adkins v. Tomlinson, 121 Mo. loc. cit. 495. It imports an obligation both in the present and in the future and as such may be sued upon by the subsequent grantee, although it was broken while the title was in the prior grantee, provided the latter did not sue before transmitting the title, and providing the subsequent grantee has suffered loss by the breach of the covenant. Appellant contends that in as much as the deed from plaintiff’s immediate grantor contained a restriction of liability to acts done by or through him no transfer to plaintiff of the covenants of the original grantor (the defendant) took place. This position can not be maintained. The restriction in question merely limited the obligation of the maker of the deed containing it, and in no wise the obligation of the maker of a prior deed containing covenants without any restriction. In the case at bar the existence of a prior lease of the land for three years, when defendant’s deed was made containing a covenant of seizin of an indefeasible estate, was a breach of that covenant, for which action might have been maintained and full damages recovered by the first grantee. As he, however, did not sue, his deed to plaintiff carried the covenant, and plaintiff became entitled to' sue thereon and recover to the extent he was damnified by the outstanding lease. The undisputed facts show that plaintiff was prevented from getting possession of the premises or receiving rent therefor for two years and two months. The courts found the rental value of the land to be $150 per year and gave judgment in favor of plaintiff for $375. The motion for new trial attacks this judgment as excessive. [22] The point is well taken. The judgment should at most have been for $325 for the two years and two months of plaintiff’s dispossession, and this should have been credited with $33 received by plaintiff in an action for damages against the obligors in a contract to give him possession. Rorfere'd™R If, therefore, plaintiff will remit in ten days $83 of his recovery the judgment for a balance of $292 in his favor will be affirmed, otherwise the judgnient herein will be reversed and the cause remanded. It is so ordered. All concur. Judge Biggs in result.