Leet v. Gratz

101 S.W. 696, 124 Mo. App. 394, 1907 Mo. App. LEXIS 228

Opinion

NORTONI, J.

(after stating the facts.) — As appears from the finding of facts made by the learned trial judge, which we have deemed proper to incorporate as a true and accurate statement of the case, the action is on the covenant of indefeasible seizin implied in the statutory words “grant, bargain and sell” (sec. 907, R. S. 1899) and on an express covenant of warranty of usual import in the deed, and for the breach of both of said covenants, which breach is an eviction, operated by the purchase of the interests of several devisees in the paramount title, after its paramountcy was established by judgment in ejectment against the plaintiff grantee. The case at bar is a suit on the same and identical covenants involved in a former action between the identical parties, wherein a recovery for substantial damages was had and the judgment therein affirmed, as will more fully appear by reference to the case of Leet v. Gratz, 92 Mo. App. 422. In the former case, after judgment in ejectment had been entered against Leet and the paramount title thus asserted and established in the Gannon devisees, Mr. Leet proceeded to and did extinguish by purchase, and acquired to himself, the title of three of the Gannon devisees who were then adult. There remained outstanding, however, after this purchase, the title of several of the minor devisees of said Gannon for the reasons shown and set forth in the report of the former adjudication. The former recovery was allowed and sustained for the amount paid the adult Gannon devisees for their interests in the title. Since that recovery was had, plaintiff has purchased the interests in the title of certain of the devisees who were minors when the former case was determined and now in this second action on the same covenants, seeks to recover -for the amount of his expenditure in that behalf.

The defense interposed and sustained in the circuit court was that the present action is barred by the former recovery; or in other words, the learned counsel for defendant asserts that the plaintiff has split his cause of action and the rule with respect to such matters is invoked to preclude a recovery in the case now in judgment. The proposition thus presented is the only question on which the opinion of the court will be given.

The argument advanced upon behalf of the defendant is predicated upon the proposition that there was but one breach Of the covenants and therefore but one recovery is permissible. We are inclined to the opinion that the proposition asserted as a predicate is unsound in principle under the adjudicated law of this State with respect to such covenants. In order to set forth the reasons which have impelled us to this conclusion,, it will be necessary to notice the rule in Missouri, established by our courts and in part, the rule elsewhere, on the two covenants involved, and point out such distinctions as we have observed in this most intricate and technical branch of the law. We will examine the two covenants, that of the indefeasible seizin, implied in the words quoted, and that of express warranty, to some extent separately, that of seizin first and that of warranty second, and the rules which obtain with respect thereto here and elsewhere.

Now the covenant of indefeasible seizin goes to and operates as an assurance of indefeasible title in the grantor and, generally speaking, like a covenant of good right to convey, and the covenant against incumbrances is regarded and treated as being a covenant in praesenti and therefore broken, if at all, when made. This proceeds in full accord with the rules of logic, for it must be true that if a grantor covenant with the grantee that he has an indefeasible estate when in fact he has mo estate or the estate is defeasible, then this covenant is technically breached upon the delivery of the deed, and the same is true with respect to the covenants of good right to convey and against incumbrances, for in each instance it must follow if the grantor have no right to- convey or the estate conveyed be then subject to incumbrances outstanding, such covenants are breached when made; that is, upon the delivery of the deed. These covenants are therefore said to be in praesenti and ordinarily the rights and liabilities flowing therefrom are measured and ascertained in accordance with the principles of law pertinent to such fundamental notion. For instance, the right of action for the breach of such covenants therefore accrues on the covenant instanter and it is said that the covenant thereupon becomes merged in a mere right of action and in some jurisdictions, this right after the covenant is extinguished by the merger, is not assignable. It must therefore be asserted or otherwise slumber and die in the hands of the covenantee. [See Rawle on Covenants (5 Ed.), sec. 208; Ogden v. Ball, 40 Minn. 94-99; Dickson v. Desire, 23 Mo. 151; 8 Amer. and Eng. Ency. Law, (2 Ed.), 90, 91, 141, 151; Leroy v. Beard, 8 How. (U. S.) 451; Mosely v. Hunter, 15 Mo. 322.] This doctrine does not prevail, however, in this State, as will presently be adverted to and more particularly pointed out. Nevertheless, by essential analogy on principle, and as a sequence to the doctrine referred to in those jurisdictions where it obtains in the full measure of its applications, it has been determined upon the theory that a covenant of seizin being in the present tense and broken when made, that but one action can be sustained upon such single breach and that in event of action being brought upon it while the possession is still undisturbed and a recovery had thereon, such recovery of even nominal damages can be successfully pleaded in bar to a subsequent action on the same covenant, if substantial damages have afterwards accrued. [Rawle on Covenants (5 Ed.), sec. 178; Ogden v. Ball, 40 Minn. 94-99; Donnel v. Thompson, 10 Me. 170; 8 Amer. and Eng. Encv. Law (2 Ed.), 170.] It is upon the doctrine of one breach and one recovery referred to, defendant asserts the former recovery mentioned as a complete bar here. Now, if the doctrine above stated were the law in this State, it is quite clear that while the former recovery would operate as a complete bar to this second action on the covenant of seizin, it would not so operate against a recovery here upon the covenant of warranty expressed in the deed inasmuch as the covenant, like the covenant of quiet enjoyment, differs from that of seizin in that neither the covenant of warranty nor for quiet enjoyment goes to an indefeasible title in the grantor, but, on the contrary, only goes to the extent of assuring the grantee that he shall not be disturbed in his possession or deprived of a quiet enjoyment of the premises. Covenants of warranty and for quiet enjoyment are therefore, instead of being in praesenti and broken when made, prospective in their nature, are covenants in futuro, a breach of which consists in an effectual disturbance of the grantee’s possession of the premises; or in other words eviction, either actual or constructive. It is said the reason for the rule that there must be an eviction before there can be a recovery upon the covenant of warranty and for quiet enjoyment, has its foundation in the reason that the covenantee who has obtained possession' should not be permitted to recover for a breach of such covenants for a mere failure or defect of title, so long as he is permitted to remain undisturbed in possession of the premises. He may in fact never be disturbed or evicted therefrom, and thus may never suffer damages as his possession under such circumstances would, in due time, in fact ripen into title by his adverse holding, or, on the other hand, his grantor, in keeping with his covenant, may see fit to, and perfect the title for the grantee. [8 Amer. and Eng. Ency. Law (2 Ed.), 92, 98, 99; Rawle on Covenants, secs. 112-114; Shelton v. Pease, 10 Mo. 473-482; Ogden v. Ball, 40 Minn. 94-99; Pense v. Gabbert, 63 Mo. App. 302; Barlow v. Delaney, 40 Fed. 97; Blondeau v. Sheridan, 81 Mo. 545; Norton v. Jackson, 5 Calif. 262; Scriver v. Smith, 100 N. Y. 471; Morgan v. Henderson, 2 Wash. Ter. 367.]

As indicated above, the rule respecting the implied covenant of seizin; that it is a covenant in preasenti and broken, if at all, when made; and the essential consequences of its strict application to the effect that there is but one breach for which but one recovery is permitted, does not obtain in Missouri. On the contrary, it has been settled with us from an early period in the judicial history of the State that the covenant of indefeasible seizin implied in the statutory words “grant, bargain, and sell” is more than a covenant in praesenti • it is in fact when either some title, although defeasible, or possession of the premises accompanies the deed, a continuing covenant of indemnity having capacity to run with ■the land, annexed and incident to the indefeasible estate, if it be such (Dickson v. Desire, 23 Mo. 151), or if it be defeasible and some title is conveyed, then to the defeasible estate (Chambers v. Smith, 23 Mo. 170), or if pos session be given under tbe deed and no title, then as incident to sucb possession (Dickson v. Desire, supra), and so on to successive grantees until the paramount title is asserted and results in damage to tbe actual possessor. Tbe right of tbe action on tbe covenant having been thus continued and passed to tbe subsequent grantee, tbe actual possessor, it inures to such subsequent grantee upon whom tbe loss finally falls. [See Dickson v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 174; Walker v. Deaver, 79 Mo. 664; Magwire v. Riggin, 44 Mo. 512; White v. Stevens, 13 Mo. App. 240; Allen v. Kennedy, 91 Mo. 324, 2 S. W. 142.] It may not be out of place to say here that so much of tbe doctrine of tbe earlier cases which required tbe grantee to have possession conferred upon him under the deed, when tbe title attempted to be conveyed is defeasible, in order that tbe covenant may continue and run with tbe land, seems to have been modified in Allen v. Kennedy, supra, in view of tbe fact that under our law, cboses in action may now be assigned, and our statute on conveyances (R. S. 1899, sec. 905), authorizing any person claiming title to real estate, though there may be an adverse possession, to convey bis interest as if be were in actual possession. At any rate a recovery in that case was authorized on tbe covenant by a subsequent grantee of a defeasible estate of which tbe grantee bad never been in possession under tbe deed. This is unimportant here, however, for tbe tbe possession of tbe premises in tbe present case accompanied tbe deed to the plaintiff.

Tbe two cases of Dickson v. Desire and Chambers v. Smith, supra, were argued, considered and determined at the same term of our Supreme Court in 1856, as appears from tbe opinions which were prepared in each case by tbe very learned and accurate Judge Leonard, tbe one Dickson v. Desire, announced and established tbe doctrine that tbe implied covenant of seizin is more than a covenant in praesenti; that it is a continuing covenant of indemnity running with the land, inuring to the subsequent grantees upon whom the loss should fall. The second case, Chambers v. Smith, applied and extended the principle of the former case to the effect, and announced the doctrine, that the right of action accruing from the breach of the covenant shall be considered to have arisen on the accrual of substantial rather than on the accrual of nominal damages, operating from the technical breach of the covenant when made. The rule was deemed to be in accord with the plain principles of justice, inasmuch as it would operate a great hardship if the claim of the covenantee for damages was barred by the operation of the Statute of Limitations which otherwise would be set in motion by the breach of the covenant on the delivery of the deed, and thus a possible right of action for substantial recovery be barred before the covenantee had been evicted and placed in a position to. avail himself of a substantial recovery for the breach. The doctrine, there announced appeals to our judgment as commendable and just. At any rate, there is thereby established a proposition in the law of this State, as ascertained and certain, that the breach with which the courts deal in measuring the rights and liabilities and in applying the Statute of Limitations in actions on this covenant, is the substantial breach which occurs on eviction, either actual or constructive, as contra-distinguished from the technical breach accruing on the delivery of the deed and for which nominal damages only are recoverable as a matter of course, until possession had been disturbed. [Priest v. Deaver, 22 Mo. App. 276-283; 8 Amer. and Eng. Ency. Law (2 Ed.), 224.] The result of this doctrine and the analogy of the law lead to but one conclusion, and that is, under our law, the breach of the implied covenant of seizin and the breach of the express covenant of warranty and the right of the action therefor, accrue when the covenantee suffers eviction, either actual or constructive, which operates, of course, a sub stantial impairment of his rights. This being true, the doctrine with respect to their breach and the accrual of the cause of action for such breach at this point of conjunction, is the same. [8 Amer. and Eng. Ency. Law (2 Ed.), 224; Chambers v. Smith, 23 Mo. 174; Dickson v. Desire, 23 Mo. 151-163; White v. Stevens, 13 Mo. App. 240; Priest v. Deaver, 22 Mo. App. 276-283; Walker v. Deaver, 79 Mo. 664, 675, 676. See also Scott v. Twiss, 4 Neb. 133; Wood v. Dubuque, 28 Fed. 910.] That is, when the breach relied upon is an outstanding paramount title, the technical breach of the covenant of seizin, at the delivery of the deed, is deferred to and operates from the date of eviction, identically as does a breach of the express covenant of warranty. At this point the two covenants seem to meet,- — indeed it is true the covenant of seizin is breached before that time; i. e., when made, for which a nominal recovery may be had, — but for the purpose of authorizing a substantial recovery and for the purpose of initiating the operation of the Statute of Limitations against the right of action arising by virtue of the breach, it is deemed to have been breached by eviction, either actual or constructive, only. In this respect it of course operates an assurance of possession concurrently with the covenant of warranty and quiet enjoyment, notwithstanding the covenant for indefeasible title implied in the words quoted, which is broken when made, for the reason, as said before, the grantee, if not evicted, may remain in adverse possession even after paramount title is discovered until his defeasible title is rendered indefeasible by the running of the statute, or his grantor may purchase the paramount title for his benefit and thereby render the estate secure in his possession without loss on account of the technical breach. Now it appearing that the implied covenant of seizin, like an express covenant of warranty, is breached only for the purpose of a substantial recovery and so as to initiate the Statute of Limitations against the right of action on the breach by an eviction, and that each of those covenants is a continuing coyenant (Walker v. Deaver, 79 Mo. 664, 675, 676) inuring for the purpose of indemnity to the grantee upon whom the loss entailed by the paramount title, shall fall, and it further appearing that Leet, the grantee, was evicted in construction of law when, after judgment in ejectment against him in favor of the. Gannon devisees, he purchased the interests of the three adult devisees involved in the former suit (Leet v. Gratz, 92 Mo. App. 422) then such purchase, amounting by construction of law, to an effectual disturbance of his possession — an eviction — was, in fact, a breach of both the covenant of seizin, and that of warranty. [8 Amer. and Eng. Ency. Law (2 Ed.), 112; Pence v. Gabbert, 63 Mo. App. 302; Leet v. Gratz, supra.] For this breach, an action at once accrued on the covenants and so the logical sequence is, and on sound principle it must result, that each succeeding purchase of the interest of the various devisees in the title, the paramountcy of Avhich had been established in the ejectment suit, is a new and distinct breach on which a new and distict cause of action accrued. There is indeed a a well-established rule in the law of covenants to the effect that when the covenant is determined to be a continuing covenant, distinct, separate and successive breaches may occur, and, of course, each successive breach constitutes a new, distinct and separate cause for which as many successive actions may be had. [8 Amer. and Eng. Ency. Law (2 Ed.), 171; Priest v. Deaver, 22 Mo. App. 276, 282, 283; Beach v. Crane, 2 N. Y. 96; Menges v. Milton Piano Co., 96 Mo. App. 611; Phelps v. New Haven, etc., Co., 43 Conn. 453.] Indeed, the rule finds support in ample authority, asserting a commendable principle for practical application to the end that just results may be had in cases of the character now under consideration, where harsh and unconscionable entailments Avould proceed from the denial of its application. If this be not true, then why have continuing covenants of indemnity inuring to the benefit of the one upon whom the loss shall, fall unless it may be breached by successive losses in a sense that will afford a remedy for successive breaches to enforce the indemnity vouchsafed by the covenant. In Priest v. Deaver, supra, the doctrine was most justly applied by this court in an action on the express covenant of warranty which was breached by the outstanding incumbrances of an inchoate right of dower, which was afterwards reduced by a competent decree to an indemnity charge upon the estate in favor of the doweress and payment enforced against the grantee in possession who was sustained in the prosecution of successive suits on the covenant against the grantor upon successively discharging the annual annuitant charges. The principle of that case is certainly in point here. Now, applying the principles deduced to the facts of the case at bar, we ascertain that by the plaintiff (Leet) purchasing the interests of the three adult devisees, prior to the former suit, a right of action then accrued to him for the breach operated by such purchase, against which cause of action the Statute of Limitations eo instcmter commenced to operate. Now if he could have had but one recovery on the covenants, he would be required to withhold his suit on account of that purchase and consequent eviction until he had acquired the remaining interests or have been actually evicted by the remaining devisees entering into possession as tenants in common with him; and in event, from any cause, he was unable to purchase the outstanding interests, or those interests failed to bring about an actual eviction prior to the expiration of the period of the statute which would bar his recovery by limitations on the breach operated by the first purchase, he would then be compelled, in order to escape the operation of the limitation, to exhaust his remedy on the breach covenant by suing for the amount expended on the first breach or suffer that right to be come barred while he was endeavoring to purchase the interests still outstanding or awaiting an actual eviction by the holders of those interests to the end that a right of substantial recovery might accrue to him therefor. Now the law is certainly reasonable and just. In its wisdom, seeking to alleviate the hardship entailed upon the grantee, threatened with eviction from the premises in and about which he has in good faith invested his means, it permits and authorizes the grantee to purchase the paramount title thus threatening his occupancy and declares such purchase by him under the circumstances mentioned, an eviction, operating a breach which will sustain an action over on the covenants, raises up the cause of action forthwith from such breach, and sets the Statute of Limitations in operation simultaneously therewith, looking to its ultimate bar, probably before he can acquire the right of reimbursement for threatened and imminent loss on account of the remaining interests which he was unable to purchase and which inter-, ests have so far failed to actually evict. The very inherent integrity of our system of jurisprudence and. those ends of justice and perfection always sought to be attained by the common law, deny the pertinency of a doctrine which shall preclude relief under the circumstances stated, for it must be, the law having created, permitted and enforced the situation, would not deny a recovery here on the theory of a second action on the same breach when in fact it has declared the separate purchase to be separate breaches against each of which the Statute of Limitations is in operation respectively from its date. Therefore, on principle and by the entire analogy of law we'give the opinion that each successive purchase, under the circumstances stated, operated a separate and successive breach of these continuing covenants of indemnity, for which separate causes of action arose, enforceable in successive suits. Of course all of the breaches in existence at the institution of the suit must be included therein.

2. Another thought as to the asserted splitting of demands. True, it is a maxim of the common law that '“no one ought to be twice vexed for one and the same cause,” and it is indeed a matter of concern to the State, in the interest of the peace and repose of society, that the citizen should not be unnecessarily harassed by several suits for the same cause of action. The general rule is that if a party have a cause of action which he may litigate and conclude in one suit and he separates it and recovers a portion, this judgment concludes him as, to the whole, and he will be barred in attempting thereafter to enforce the remainder. [Bank v. Tracy, 141 Mo. 252, 42 S. W. 946; Laine v. Francis, 15 Mo. App. 107.] The doctrine, however, applies only to the same cause' of action, and concludes such rights only as were then before the court or capable of being presented and adjudicated between the parties. Now, in the former suit, the plaintiff had been, by construction of law, evicted from the lands by the purchase of the interest in the paramount title held by certain devisees and his cause of action arose from that eviction which constituted the breach. Since, the judgment in the former case therefor, he has been evicted a second time bv the purchase of the interests in the title of other devisees and a new 'and distinct breach or cause of action accrued to him for such second eviction; so while both suits may in one sense have arisen primarily out of the same contract, that is, out of the same covenant, they are in no sense the same cause of action, for the cause of action is the several breaches occurring on the several evictions, nor were the rights here involved before the court in the former case, for the second eviction out of which arose the present cause of action, had not then taken place and it was therefore impossible to include it in the former recovery, and the former recovery in no sense could be permitted to preclude the plaintiff’s right subsequently-acquired. [Priest v. Dearer, 22 Mo. App. 276-283; State of Wis. v. Torinus, 28 Minn. 175; Hearst v. Means, 2 Sneed. (Tenn.) 546; McKissick v. McKissick, 6 Humphrey (Tenn.) 75; 2 Black on udgments (2 Ed.), sec. 734; Jones v. City of Petoluma, 36 Calif. 230.]

For the reason stated, the judgment will be reversed and,the cause remanded. It is so ordered.

Bland, P. J., and Goode, J., concur;