Bohlcke v. Buchanan

GOODE, J. On the thirtieth day of November, 1895, James W. Buchanan and Terry A. Mercer, and their wives, executed a deed to Catherine Bohlcke for an undivided one-half interest in a section of land in Stoddard county. Besides the statutory covenants imported by the words “grant, bargain and sell” and express covenants, first, of indefeasible, seizin; second, of good right to convey; third, against incumbrances ; and, fourth, of warranty, said deed also contained the following special covenant: “It is understoc d that there is a deed of trust, for twelve hundred dollars on the above land in favor of Herbert Harris, which the parties of the first part agree to pay.” Prior to September, 1895, the same section of land was owned by Henry C. Bohlcke, husband of said Catherine Bohlcke, or by Catherine herself. The record is not quite clear as to whom the title was in; but it seems to have been regarded and treated as the wife’s land. It was incumbered by a deed of trust for twelve hundred dollars held by the McCormick Harvesting Machine Company or by Herbert Harris. As well as we can tell from the abstracts of the evidence, the note was given to the McCormick company but was owned by Harris. When it fell due Harris insisted on his money which the Bohlckes were unable to pay. Harris agreed to grant an extension if Buchanan & Mercer, who- were partners in the real estate business in Dexter, Missouri, would stand good for the debt. Bohlcke applied to Buchanan about the matter and an agi’eement was made (the exact terms of which are contested) by which the entire section of land was conveyed to Buchanan & Mercer and the latter parties executed their note for twelve hundred dollars to Harris, dated the third day of September, 1895, due three years after date and secured the note by a deed of trust on the land in which E. L. Scofield was [325] trastee and Herbert Harris beneficiary. Said deed of trust was foreclosed, the debt not being paid by Buchanan & Mercer, and Catherine Bohlcke’s land was thereby lost to her. On the thirtieth day of November, the warranty deed containing the covenants which are the basis of this action, was executed by Buchanan and Mercer to Catherine Bohlcke for an undivided one-half interest in said section. Mercer moved to Oregon, but before going conveyed to his partner, Buchanan, his undivided one-fourth interest in the land and the latter was sued after the foreclosure sale for failure to keep his covenants. The exact issue of fact between the parties to this litigation is whether the section of land was conveyed to Buchanan & Mercer by the Bohlckes in order that said grantees might secure an extension of the deed Harris held against the Bohlckes with the understanding that Buchanan & Mercer as real estate agents were afterwards to sell the land and pay off the deed, they acting as merely accommodation makers of the note and deed of trust, or whether they agreed to buy one-half of the land and to take care of the debt of the Bohlckes to Harris as the consideration for it, so that the Bohlckes would have tliéir half clear of incumbrance. The contention of the respondent was that there was an outright sale of one-half the land to Buchanan & Mercer in consideration of their paying the debt the Bohlckes owed and that the entire tract was conveyed to them in order that they might make a note in their own names to Harris to take up the note he held against the Bohlckes, secure by a deed of trust on it said substituted note, then re-eonvey to Catherine Bohlcke an undivided one-half interest and protect her against the incumbrance. The circuit court found the facts in favor of the plaintiff’s contention and we think the evidence fully warranted that view. The warranty deed hack to Catherine Bohlcke shows on it face an express covenant to pay off the incumbrance [326] to Harris, 'which was on the land the deed passed to her, so that her estate would be discharged of the lien; and Harris released the first deed of trust when he got the second. The testimony of Mercer supported plaintiff’s theory, as did Henry Bohleke’s. It might be a.serious question whether parol evidence could be admitted to establish such an understanding as Buchanan contended for in the face of the covenant contained in his deed; but the preponderance of the testimony is against the defense. No declarations of law were asked and the only question is, whether under the evidence the judgment can be sustained ? We have been unable to understand how the legal proposition invoked by appellant’s counsel in this case, can be applied to the facts. The argument is advanced that after the conveyance by Buchanan & Mercer to Mrs. Bohlcke, those grantors were merely sureties for the payment of the incumbrance on the land conveyed, and Nelson v. Brown, 140 Mo. 580, and several other cases, are cited in support of this position. Those decisions hold that where incumbered land is conveyed to a party and the deed recites that the grantee as-' sumes and agrees to pay the incumbrance, the grantee becomes the principal debtor in respect to the incumbrance and the grantor a surety. But what have such cases to do with this one ? Instead of Mrs. Bohlcke assuming the incumbrance to Harris and agreeing to pay it, the deed expressly recited that it was to be paid by the grantors. And how she could become a principal, or how the land could be primarily responsible for a debt which the grantors expressly covenanted to relieve it of, we are at a loss to discover. There can not be the slightest doubt about the judgment being for the right party, provided the arrangement between the Bohlekes and Buchanan & Mercer was as the plaintiff contended and as the court found. While it is true, no eviction of Mrs. Bohlcke was proven, there was testimony, and the court found, that she was never in possession of the premises after they were con [327] veyed to Buchanan & Mercer, and that the defendant had been in absolute possession thereof ever since. Hpon this proof, the plaintiff was entitled to judgment for substantial damages and the measure of the damages was the amount of the incumbrance Buchanan & Mercer agreed to pay, to-wit: twelve hundred dollars, with interest at the rate of six per cent per annum from the institution of this action. She was entitled to recover on the special covenant to relieve her land of the Harris incumbrance and her cause of action for substantial damages, she being out of .possession, certainly accrued when the Harris deed of trust was foreclosed, thus rendering the title Buchanan & Mercer conveyed back to her worthless. It would be inconsistent with justice and common right to say Buchanan should escape liability because • Mrs. Bohleke never paid the incumbrance. An express covenant against a particular lien or incumbrance which the covenantor agrees to remove, gives a grantee a higher right than the mere indemnity against loss on account of a lien which is incident to the usual covenant against incumbrances generally. Where there is a covenant to remove a particular lien, the right is to have it removed, and the covenantee is not deprived of a cause of action for more than nominal damages unless he, himself, discharges the incumbrance or is evicted. The obligee may insist on performance of the contract in the time stipulated' or in a reasonable time if none is stipulated, regardless of injury suffered. He is entitled to enjoy his land free from the incumbrance. Chinn v. Wagoner, 26 Mo. App. (St. L.) 678; Johnson v. Britton, 23 Ind. 105; Scobey v. Finton, 39 Ind. 275; Letheridge v. Mytton, 2 B. & Ad. 772; Loosemone v. Radford, 9 Mees. & Welsby 657; Furnas v. Durgin, 119 Mass. 500; Seligman v. Dudley, 14 Hun 186; Katy v. Allen, 22 Barb. 388; Rector Trinity Church v. Higgins, 4 Roberts 372. An error was committed by the lower court in allowing excessive interest, but the respondent offers to cure that hy [328] remitting the excess in this court. A remittitur has been filed in the sum of two hundred and fifteen dollars, reducing the recovery of the respondent to fourteen hundred and five dollars. This remission of damages is accepted and the judgment, as thus modified, is affirmed. The costs of the appeal are to be taxed against the respondent. Bland P. J., and Barclay, J., concur.