author: LEONARD, Judge,

text:
    Dickson & Gantt, Plaintiffs in Error, v. Desire’s Administrator, Defendant in Error.
    1. The statutory covenant of indefeasible seizin, implied in the words “grant, bargain and sell,” is a covenant running with the land ; and, where possession accompanies the conveyance, it will enure to the benefit of the subsequent transferee in possession at the time of the substantial breach by the assertion of a paramount title ; and that, too, although an intermediate conveyance may have been a sheriff’s deed.
    2. The measure of damages in a suit between the original parties on a covenant of seizin is the consideration given and received.
    3. The right of recovery of a subsequent grantee against the first grantor must, it seems, be limited to his actual loss ; it can not, however, exceed the liability of the first vendor to his immediate grantee.
    4. In order to establish a right to recover for a breach of the covenant of seizin, it is not necessary to show an eviction; it is sufficient if some damage resulting from an outstanding paramount title be shown. If damages are sought to be recovered for the extinguishment of this title, it devolves upon the plaintiff to show the reasonableness of the price paid; and this is to be determined by the value of the land at the time of the extinguishment of the paramount title, and not by its value at the date of the previous transfers.

      Error to St. Louis Circuit Court.

    Plaintiffs, C. K. Dickson and T. T. Gantt, filed a demand in the Probate Court of St. Louis county, against the estate of Jacques Desiré. The demand, which was for the sum of $5712 50, was founded upon an alleged breach of a statutory covenant of indefeasible seizin, implied from the use of the words “ grant, bargain and sell” in a deed of conveyance from the said Desiré to Letitia Duncan, from whom plaintiffs claimed by intermediate conveyances, as set forth in the agreed case stated below. This deed purported to convey the lot of land which was the subject matter of the controversy in the case of Chauvin v. Wagner & Dorsett, reported 18 Mo. Rep. 531, to which report reference mu^t be had for a perfect understanding of this case. The demand of plaintiffs was allowed by the Probate Court, and the cause was appealed to the Circuit Court. The cause was submitted to the Circuit Court upon the following agreed statement of facts :
    “ The parties agree upon the following facts in this cause, and thereupon pray the judgment of the St. Louis Circuit Court. Either party may appeal or prosecute a writ of error to the Supreme Court.
    “ The facts are as follows : On the 8th August, 1835, Jacques Desiré made his deed in writing, recorded in book Y, p. 31, and thereby, for the consideration of $6,500, to him paid by Letitia Duncan, conveyed to her in fee a lot of ground in block 131, on Market street, St. Louis, having a front of 67 6-12 feet on Market street, which bounds it on the south, by a depth of 104 feet on Seventh street, which bounds it on the west; and in and by said deed said Desiré covenanted with said Duncan, her heirs and assigns, that he was seized of an indefeasible estate in fee simple in said real estate, as will appear by reference to said deed, which forms part of this case.. Said Letitia Duncan took immediate possession of said real estate, claiming the same under said deed, and continued seized and possessed thereof until the 16th day of December, 1846, when all the right, title, claim and estate of the said Letitia Duncan therein was sold to Walter H. Dorsett by the sheriff of St. Louis county, by virtue of a regular execution issued on a valid judgment against said Duncan. The said Dorsett thereupon immediately took possession of said real estate, and continued seized and possessed thereof until May 12th, 1855, when the heirs of Emily Chauvin, claiming the same by title alleged to be paramount to that of Desiré, by the judgment of the St. Louis Court of Common Pleas, recovered against the said Dorsett the possession of said real estate and damages for withholding the possession thereof, and costs. Said judgment was given in a suit begun on 24th August, 1850 ; and notice of the institution thereof was given to the administrator of Desiré by said Dorsett in the month of February, 1851, before the said cause was tried. Said cause was taken to the Supreme Court of Missouri, and decided, as will appear by reference to 18 Mo. Rep. 531. The record of that case may be referred to by either side as part of this case.
    “ Prior to the said judgment of the St. Louis Court of Com^ mon Pleas in May, 1855, said Dorsett had conveyed to the said plaintiffs, Dickson and Gantt, by quit claim deed, all his interest in said land, and also his right of action, if any, to him accruing, against the estate of said Desiré; and they, the said Dickson and Gantt, considering the decision in the case of Chauvin v. Dorsett (18 Mo. 531), to be conclusive of the rights of the litigants, made a compromise with the heirs of Emily Chauvin prior to the 12th day of May, 1855, by means of which the said Dickson and Gantt paid to said heirs the sum of $500 ; and a petition was filed setting forth that the said Dickson and Gantt were entitled to the one moiety of said tract of land ; and the heirs of Emily Chauvin to the other moiety ; and an order was made by the St. Louis Land Court for the sale of said real estate, which was done; and at the sale, Dickson and Gantt became the purchasers, and received the sheriff’s deed therefor.
    “ There was no express assignment by Mrs. Duncan of the covenant of indefeasible seizin made by Desiré to Duncan as aforesaid.' Plaintiffs claim tbat.it passed to Dorsett, and from Dorsett to them, by the conveyances and transfers above recited, as an incident to the estate of Letitia Duncan; which is denied by the administrator of Desiré. Plaintiffs also say that the seizin of Dorsett, vendee of Duncan, was defeated by the paramount title of the heirs of Chauvin, and the recovery aforesaid. The administrator denies that the title of the heirs of Chauvin was paramount; and by this objection, denies that the decision in the case of Chauvin v. Dorsett is law, or is conclusive on Desiré, or that said judgment, so rendered on May 12th, 1855, is conclusive upon Desiré.
    "Plaintiffs, now respondents, say that they have lost, or that Dorsett, under whom they claim, has lost, by reason of the failure of said Desiré’s title, and the breach of said covenant of seizin, the one half of said real estate, and $500 in money ; and they claim to recover against the estate of Jacques Desiré damages amounting to one half of the purchase money received by Desiré, and interest thereon from the 24th August, 1845 ; together with the sum of $500 and interest thereon, from the first day of April, 1855.”
    Said deed referred to in the above agreed case, so far as it is necessary to set forth the same, is as follows :
    "This deed, made this eighth day of August, in the year of our Lord one thousand eight hundred and thirty-five, between Jacques Desiré and Pelagie his wife, grantors of the first part, and Letitia Duncan, grantee of the second part, all of the city and county of St. Louis, and state of Missouri, witnesseth, that the said grantors for and in consideration of the sum of six thousand five hundred dollars, to them in hand paid by the said grantee at and before the sealing and delivery thereof, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents do grant, bargain and se/iunto the said Letitia Duncan, her heirs and assigns, a certain lot, piece, or parcel of ground [describing the same],” &c.
    Upon this agreed case, the Circuit Court gave judgment for the defendant. Exceptions were duly taken. The case is brought to this court by writ of error.

      T. T. Gantt, for plaintiffs in error.
    I. Dickson and Gantt hare all the right to sue on the covenant of Desiré, which accrued to Walter H. Dorsett.
    II. Walter H. Dorsett became entitled to the benefit of this covenant, upon his purchase of all of the interest of the cove-nantee in the land at sheriff’s sale.
    III. That the decision of the Supreme Court in this cause, (Chauvin v. Wagner & Dorsett, (18 Mo’. 531,) in a proceeding of which the administrator of Desiré had notice, and the judgment of the St. Louis Court of Common Pleas upon that decision, are conclusive as to the breach of the covenant of indefeasible seizin ; in other words,
    IV. That Desiré’s administrator can not aver against that judgment, that Desiré was seized according to the said covenant, or that the said covenant has not been broken.
    V. That, although the seizin of Dorsett'was altogether defeated by said judgment, yet the damages occasioned by the breach must be restricted to what was actually lost; which was the half of the land, and the sum of five hundred dollars ; and the measure of damages for the loss of one half of the land, is the one half of the purchase money paid by Mrs. Duncan, and the interest thereon, from a period of five years before the beginning of the suit in which the land was lost; i. e., 24th August, 1845. For the sum of $3,250 and interest since 24th August, 1845, and for $500 with interest, from 1st April, 1855, therefore, plaintiff in error asks judgment.
    The covenant of indefeasible, seizin more nearly resembles a covenant for quiet enjoyment, or a covenant against any encumbrance, whereby an estate may be defeated, than a mere covenant of present seizin, with which it has been sometimes confounded. (Stannard v. Eldridge, 16 Johns. 254 ; 7 Johns. 858.) Up to the defeating of the seizin only nominal damages could have been recovered on such a covenant. The covenant is one made in respect of a tract of land ; all connection between Mrs. Duncan and tbe land was severed in 1846 ; and, intact, sbe was in nowise damnified by tbe breach of tbe covenant. Its breach was not suspected when tbe sheriff sold her interest in the land to Dorsett. Does tbe right of action reside in her? She was not damaged. Dorsett has no recourse on her. Shall she be permitted, nevertheless, to claim the benefit of this covenant, and to recover or release the damages occasioned by its breach ? The Supreme Court held otherwise in the case of Alexander v. Heisterhagen et al. (13 Mo. 271.) Now, by virtue of the practice act of 1849, the beneficial interest passes with the legal title to the assignee of a chose in action. There is nothing in the case of Collier v. Gamble, (10 Mo. 466,) which militates against this doctrine. In that case, it was merely decided that an action could not be brought in the name of the assignee of the covenant of indefeasible seizin. It was not decided then or since that the covenantee, and no one else, notwithstanding a sale by deed of quit claim, could recover upon this covenant; and it is nowhere intimated that a sale by the covenantee extinguishes the covenant. In the case of Lawless v. Collier’s heirs, (19 Mo. 480,) the defendant set up in his answer the liability under which he lay to the person to whom the title which Gamble had acquired from Collier, such as it was, had passed. And it was part of the case of plaintiff that Mills and those to whom Gamble had conveyed, had been made secure and quiet by Gamble himself.
    The case of Chauvin v. Wagner & Dorsett, (18 Mo. 531,) was laboriously argued, and the case was maturely considered by the court. The judgment of the Supreme Court must be held to be conclusive as to the breach of the covenant of seizin in Desiré’s deed to Mrs.'Duncan. (See 1 East, 541; 14 Yes. 591 ; 8 T. R. 503 ; 9 Mo. 466.)

      J. R. Shep ley, for defendant in error.
    I. The covenant of indefeasible seizin, contained in the words “ grant, bargain and sell” in the deed-of Desiré to Mrs. Duncan, does not run with the land, and the plaintiff can take no rights thereunder in any event. They can not take the benefit of that covenant, because the covenant, if broken at all, was broken as soon as made. The right of action is immediately fixed in the grantee in the deed, and the grantee could sue upon it and recover nominal damages the very day after the execution and delivery of the deed. The liability of the grantor to the grantee is a thing fixed at once, but the amount of it isv determinable upon the situation of the grantee, whether he has been evicted or retains possession of the land ; but it is a damage already sustained by a covenant broken. This covenant is not a continuing covenant which runs on until broken by an actual eviction or something tantamount thereto. How, then, can any thing short of an actual assignment of that present right of action by the person having it, transfer that right ? Our Supreme Court, in the case of Collier v. Gamble, (10 Mo. 466,) expressly held, both that the covenant is broken as soon as made, and also that it does not run with the land. In taking a deed for land, the grantee may have two kinds of covenants, those which run with the land and those-which do not, or both, as he and his grantor may agree. It may be, as in this case, that the grantee is content to receive only those which do not run with the land. By not giving a general warranty the grantor chooses to limit his liability to his immediate grantee, and as long as the grantee holds the land, he is just as responsible for a failure of title as he could make himself by any form of words. But the moment the land passes from the grantee, then the liability of the grantor ceases, or at least can only be enforced by the grantee or his assignee, by special assignment of the covenant and right of action thereunder. (See also Lawless v. Collier’s exec’r, 10 Mo. 480 ; Bachus’ adm’r v. McCay, 3 Ohio, 216.) After breach all covenants even of warranty do not pass as incidents of the estate. (21 Wend. 125-6 ; 14 Pick. 167, 171; 16 ib. 68. See, also, 5 Conn. 487, 505, 508.) Even if in some cases the person who stood in the position of a subsequent grantee, but who had no assignment of the covenant from the immediate grantee, could take the benefit of the covenant, yet, as Dorsett, under whom the plaintiffs derive title, took title under a sheriff’s sale of the interest of Mrs. Duncan in the land, they stand in no position to invoke any equities in their favor. Their right, if they have any, is an equitable one. The purchaser at the sheriff’s sale merely took the title which the debtor had in the land at the time of the sale, and the benefit of those covenants that run with the land. In any event, the subsequent grantees of the land only, without any special transfer of the covenant, can not be subrogated to the rights of the immediate covenantee, unless the deed from the immediate covenantee contain some covenant by which he is bound to make good the title. A sheriff’s deed or a mere quit claim can not have such an operation. (3 Johns. 862 ; Cornell v. Jackson, 3 Cush. 509 ; Wyman v. Ballard, 12 Mass. 804 ; Chaplain v. Briscoe, 11 S. & M. 372.)
    II. Even if it be admitted that the covenant is, in equity, an incident of the estate, for the breach of which an action under our code could be maintained by the subsequent grantee in his own name, yet, under the facts of the case, no recovery can be had. The case of Chauvin v. Wagner & Dorsett, (18 Mo. 531,) was simply reversed in the Supreme Court, and remanded. Under the decision in that case, Desiré’s representatives had a right to have a jury pass upon the question of re-delivery of the deed to Desiré, aDd also to call upon Dorsett to exhaust every means of defence before coming upon them. Plaintiffs had no right to compromise away the rights of the representatives of Desiré to have the matter tried. Desiré’s representatives did not assent to the compromise. The principle contended for would be a most dangerous one. The very fact that a compromise was effected on the terms mentioned in the agreed case, is conclusive that no such compromise ought to have been effected. If the case was so clear against Dor-sett as the plaintiffs would have us suppose, how does it happen that the Chauvin heirs relinquished half of a lot of ground which the plaintiffs ask us to pay over $5000 for ?
   LEONARD, Judge,

delivered tbe opinion of tbe court.

The question here is as to tbe capacity of tbe statute covenant of title, implied from the use of tbe words “ grant, bargain and sell,” to run with tbe land where tbe breach complained of is the total want of an estate in fee in tbe grantor. The possession of the land passed with the deed, and the title of the parties, whose claim to the damages is here sought to be enforced, is derived from the first grantee, through a sheriff’s conveyance, made upon an execution sale. It is thus seen that we are to deal with a question that has been the subject of frequent discussion in the courts of justice, on both sides of the Atlantic, and upon which it is impossible to reconcile the decisions not merely of different courts, but of the same courts at different periods of time. _ We proceed to state what we consider the general principles of law applicable to the subject, and then, applying these principles to the case before us, will state the practical results at which we have arrived.

The sale of a thing imports, from its very nature, an obligation on the part of the seller to secure to the purchaser the possession and enjoyment of the thing bought, the right to possess and enjoy being really that which is purchased. The obligation, therefore, is an incident of the transferred ownership, and goes along with it for its protection ; and, in order to afford the holder a just compensation when it is disturbed or lost, the benefit of the obligation devolves of course upon the successive owners. In this manner, it works out the purpose for which it is raised, by holding the original seller, who has the equivalent for the land in his own hands, to his just responsibility, and by yielding the indemnity to the party who has sustained the loss, and is entitled by succession as the last purchaser to the rights of the preceding proprietors in the same chain of title. This natural warranty of title, however, was not recognized by the common law. It was allowed upon the sale of a personal chattel, where the seller was in possession as the apparent owner ; but in reference to real property, the maxim was adopted u caveat emptorand in such sales, therefore, a conventional warranty was resorted to in practice, which, attaching itself to the estate conveyed, ran along with the land as an incident to it for the benefit of the successive owners. The effect of this engagement was to oblige the warrantor to defend the estate to which it was annexed, into whosoever hands it went, which it accomplished by estoppel or rebutter, when the attack came from the warrantor himself, and by a recovery of other lands of equal value upon voucher or “ warraniia char-toe ,” when the attack came from a stranger ; and although this conventional warranty of the common law was considered so entirely an accessary obligation that it could subsist only as an incident to some estate in the land, this produced no inconvenience in the ancient system of conveyancing by feoffment and other similar assurances, which, operating upon the possession, created by their own force estates de facto, (tortious estates, as they were called,) sufficient to support the warranty, and carry it along with the land to all the subsequent successors. In the progress of time, however, other modes of transfer were introduced under the statute of uses, which operated upon the right only ; and the present covenants of title superseded in English conveyancing the ancient warranty of the common law, which, yielding a recovery in money instead of land, were, for that reason, deemed personal covenants. But they also, without distinction, until broken, from their own nature and purpose, ran with the land, in the same manner as the ancient real warranty. When a breach occurs, however, they are converted into mere rights of action, and these rights are then arrested in the hands of the party who is the owner for the time being, and the action lies where it falls, under the ancient common law rule that forbids the assignment of these rights.

There seems, however, to be a distinction between the doctrine of the English courts and of some of the leading courts in the United States, as to the character of the breach of a covenant of seizin, that will produce this effect; the former holding that it must be a final, complete' breach, giving a right of substantial recovery ; while in the latter, the doctrine seems to be that a mere nominal breach, from which no real damage results, is sufiicient to merge the covenant in the right of action, and to deprive it of the capacity of running with the land.The English doctrine is to be found in the case of Kingdon v. Nottle, (4 Maule & Selw. 53,) which was an action by the devisee of the land upon the covenant of seizin in the defendant’s conveyance in fee, and it has been followed in Indiana, (Morton v. Baker, 5 Blackf. 232); and in Ohio, (Backus v. McCoy, 3 Ohio; Foote v. Barnett, 10 id. 317; Devore v. Sunderland, 17 id. 55); and, in reference to the covenant against encumbrances in North Carolina, (McCrady v. Brisbane, 1, Nott & McCord, 104); and formerly in Massachusetts, (Prescott v. Trueman, 4 Mass. 627, and Sprague v. Baker, 17 id. 588.) But now in Massachusetts, as well as New York, and several other states, the covenant of seizin is considered to be, under all circumstances, a covenant in the present tense, which, if broken at all, is broken at the moment of its creation, and is immediately converted into a mere chose in action, which is incapable of running with the land. The rule seems to be the \ same, both here and in England, that the breach extinguishes j the covenant and renders it incapable of running with the land; j but the difference is in its application — in determining under what circumstances the'breach is to be considered as having this effect; the English courts holding that the breach of the covenant of seizin is not final and complete until the right of substantial recovery exists, while in most of the United States this effect is supposed to result from the formal breach, without any regard to the question of damage.

In the English case of Kingdon v. Nottle, before referred to, where the possession passed with the deed, Lord Ellenborough remarked that “ here the covenant passes with the land to the devisee, and has been broken in the time of the devisee;* for, so long as the defendant has not a good title, there is a continuing breach, and it is not like a covenant to do an act of solitary performance, but is in the nature of a covenant to do a thing toties quoties, as the exigency of the case may require. Here, according to the letter, there has been a breach in the testator’s lifetime ; but, according to the spirit, the substantial breach is in the time of the devisee, for she has thereby got the fruit of the covenant in not being able to dispose of the estate.” These observations were severely criticised in Mitchell v. Warner, (6 Conn. 497,) where it was said by the Chief Justice, "I affirm that the novel idea attending the breach in the testator’s lifetime, by calling it a continuing breach, is an ingenious suggestion, but of no substantial import. Every breach of contract is a continuing one until it is in some manner healed; but the great question is, to whom does it continue as a breach ? The only answer is to the person who had the title to the contract when it was first broken. It remains as it was, a breach to the same person who first had a cause of action upon it. If it be any thing more, it is not a continuing breach, but a new existence. In the next place, I assert that it is like a covenant to do an act of solitary performance ; and for this plain reason, that it is in its nature a covenant for a solitary act, and not for a successive one. It has no analogy to a covenant to do a future act at different times, which may undergo repeated breaches. It can not be partly broken and.partly sound, but the grantor is seized or not seized, and therefore the covenant is inviolate or violated wholly. I therefore conclude that the judges pronouncing it would have been of an opinion different from the one expressed, had they recognized the principle, here well established, that the breach of the covenant of seizin is in its nature total, and the measure of damages the whole consideration paid for the land.”

It is thus seen that the real point of difference is, that in England the covenant of seizin is, under some circumstances, a mere covenant of indemnity; but in most of the United States, it is always a present covenant, which, if ever broken, must be broken as soon as made, and upon which, of course, only one recovery can be bad, tbe right to which accrues as soon as the covenant is entered into.

The true question would then seem to be, at what time the right of substantial recovery accrues; whether at the moment of the delivery of the deed; or, is it postponed under any circumstances until the actual damage is sustained ? It would seem quite impossible to hold, as we were asked to do in a case before us at the present term, that the cause of action accrues immediately, so as to set the statute of limitations in motion against the party, if we are to hold that during the whole period of its running, the party could not have recovered any thing more than nominal damages ; and it would seem quite unreasonable to say that the party could not have a real recovery upon the mere formal breach, because no actual damage has resulted to him from the want of title, and yet afterwards to allow him to recover not on account of; any damage that had accrued to himself,-but in respect to the loss that had fallen upon his grantee.

Our course of decision must, if possible, be such as to avoid these difficulties. In Collier v. Gamble, (10 Mo. 466,) the covenant was created, by the statute, and the land had passed and been enjoyed according to the deed, and the breach complained of was a paramount title in a stranger, that had not yet been either asserted or extinguished. In the opinion of the court, it is remarked that the existence of a paramount title, whether it has been asserted or not, is a breach of the statutory covenant; and if for such breach the grantee is permitted to recover the consideration money and interest, he may get both the purchase money and retain possession of the land under a title which is defeasible, but which may in fact never be defeated. In such cases, the reasonable rule is to recover nominal damages only, until the estate conveyed is defeated or the right to defeat it has been extinguished. (Prescott v. Trueman, 4 Mass. 627; and Wyman v. Bollard, 12 id. 302.) This avoids the manifest injustice of permitting the plaintiff to recover the value of the land, and at the same time retain possession under a title which may never be disturbed, or the defects of which may be remedied by the payment of an inconsiderable sum. It is the rule which prevails in the construction of covenants against encumbrances, and our statutory covenant of seizin is, in fact, a covenant against encumbrances as well as of seizin.” And the judgment was, that, under the circumstances of the case, the party was entitled to a nominal recovery only ; and, although it was also decided that the covenant did not, in reference to the breach, run with the land, so as to pass the benefit of it to the grantee of the covenantee,’ yet we may remark that the suit for the use of the last purchaser was in the name of the first grantee, under an express assignment of the right of action ; and so the result of the decision, as to the substantial rights of the parties, is not inconsistent with any we shall hold in the present case. The same doctrine, in reference to the recovery being nominal, seems to have been applied under similar circumstances, not only in the states to which we have already referred, but also in New York, (Delavrye v. Morris, 7 Johns. 358); in Maine, (Bean v. Mayo, 5 Maine, 94); and Vermont, (Richardson v. Dow, 5 Verm. 9). The eifect of these decisions, we think, is to convert the covenant of seizin, under such circumstances, substantially into a covenant of indemnity against the damage that may result from the want of lawful title ; and if so, it leaves the capacity of the covenant to run with the land untouched, until the damage has actually resulted to the party. This is the view taken by the courts in Ohio, and, accordingly, in Backus’ administrator v. McCoy, (3 Ohio, 216,) the judge, who declared the opinion of the court, laid down the doctrine that “ when the heir or assignee acquires any interest in the land, however small, by even an imperfect or defective title, he shall be entitled to the benefit of all those covenants that concern the realty ; and when he has been evicted by permanent title, he is the party damnified by non-performance of the grantor’s covenants, and for such may sustain an action. This seems to be reasonable in itself, as well as in accordance with the terms of the covenant. By considering the covenant of seizin as a real covenant attendant upon the inheritance, it will form part of every grantee’s security, and make that which otherwise must be either a dead letter or a means of injustice, a most useful and beneficial covenant — a dead letter, when an intermediate conveyance has taken place between the making of the covenant and the discovery of defect of title, and the covenantee refuses to bring suit — a means of injustice, when, after the co-venantee has sold and conveyed without covenants, he brings and sustains an action on the ground that the covenant was broken the moment it was entered into, and could not, therefore, be assigned. When lands are granted in fee by such a conveyance as will pass a fee, and the grantor covenants that he is seized in fee, we can perceive no objection, legal or equitable, to this covenant, as well as the covenant of warranty, passing with the land, so long as the purchaser and the successive grantees under him remain in the undisturbed possession and enjoyment of the landand it was again reasserted, many years afterwards, in the recent case of Devore v. Sunderland (17 Ohio, 55). We are disposed to take a similar view of our statute covenant. It proceeded, no doubt, from an instinctive feeling of the moral propriety of requiring a party, who sells land, and not merely his own interest in it, whatever that may be, and conveys it by words of transfer appropriated to such a transaction, to secure to the purchaser, and those who succeed him in his rights, the enjoyment of the property sold, and to indemnify them, if it should be lost, by reason of any defect of title. This construction, we think, will best promote the object the legislature had in view, and subserve the purposes of justice in transactions of this kind ; and we may remark here, historically, that the state of Maine, in the recent revision of her laws, has expressly provided that the right of action upon a covenant of seizin shall vest in the assignee of the land, so as to enable him to sue and recover in his own right after an eviction by a title paramount. (R. S. 1841, tit. 10, chap. 115, sec. 16; Prescott v.Hobbie, 30 Maine, 346.) When, therefore, a defeasible title, or the possession without any title, has passed under the deed, we shall consider the statute obligation in respect to the title rather as one of indemnity, which, running with the land until the damage is sustained, enures to the benefit of the party on whom the loss falls. The general doctrine of the old law, as to the real warranty, that when no estate passes to which the warranty can be annexed, the benefit of it does not run to a subsequent assignee, admitting it to be applicable to the modern covenants of title, is obviated in cases like the present by the American decisions, that a conveyance by a grantor in possession under a claim of title passes an estate to the grantee sufficient to carry the'covenants to any subsequent assignee. (Slater v. Rawson, Met. 489; Marston v. Hobbs, 2 Mass. 439; Willard v. Twitchel, 1 New Hamp. 178; Beddoes v. Wadsworth, 21 Wend. 120.)

We proceed now to apply these principles to the case before us. The deed under which Desiré, the original grantor, derived his title, was ineffectual to pass the fee, on account of the defect in the certificate of acknowledgment, as has been again decided at the present term; but as the actual possession went along with the deed, the covenant attached itself to the land and ran with it, until the paramount title was discovered and asserted. The covenant accordingly passed under the sheriff’s conveyance to Dorsett, not as an independent subject of sale, but as an incident to the possession and apparent ownership of the land, upon the same principle that ic would have passed had the sale and transfer been made by the owner himself. When paramount title was asserted, the party upon whom the loss fell became entitled to an action on the covenant for the damage he had sustained. The amount of this damage, however, is not admitted in the agreed case, nor do we think there are sufficient facts in it from which we can ascertain the amount as a matter of law.

On a covenant of warranty or seizin, where the transaction remains between the original parties, the measure of damage is the value of the land at the time of the sale, as fixed by the parties themselves in the price given and received. When, however, the original grantee-has sold the land to another, and the second purchaser has been evicted, the damage he has sustained is the value of the land at the time of his purchase, and his right of recovery against the first grantor upon the original covenant must, of course, be limited to his actual loss, although it can not exceed the liability of the first vendor to his immediate grantee. These are our present views upon this subject; but as the question as to the amount of. the damages has not been argued, and as the judgment must be reversed, what is said upon that subject need not be considered as concluding us in any subsequent investigation of the case. It is admitted that upon this covenant it is not necessary for the party to show an eviction, but then he must show an outstanding paramount title which has resulted in some damage to himself ; and if he insists that he has extinguished this title, and seeks to recover the cost of it, he must show affirmatively that the price paid was reasonable; and whether this were so or not depends on the value of the lot at the time of the compromise, and not upon what it was worth either when Mrs. Duncan purchased, or when it was subsequently sold at sheriff’s sale. Indeed it may be, for aught we know, that the whole lot, at the time of the compromise, was worth very little more than twice the sum then paid for half gí it. If, however, it were in fact worth the five hundred, and one half the purchase money paid by Dorsett, then the price paid was reasonable, and he and those claiming his rights are entitled, as we now think, to recover these two sums ; but whether he will be entitled to interest upon the half of his purchase money, depends'upon circumstances, not now disclosed. (Lawless v. Collier’s executors, 19 Mo. 485.) The judgment is accordingly reversed, and the cause remanded ;

Judge Ryland concurring.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Gutzwiller, Respondent, v. Lackman & others, Appellants.
    1. The character of either party to a civil suit can not be inquired into, unless it is put in issue by the nature of the proceeding itself.
    2. Where properly is conveyed by a debtor to a trustee for the benefit of his creditors, and, at the trustee’s sale thereof, is purchased for the use and benefit of the debtor, or with money furnished by him : Held, that the title of such purchaser is not valid as against creditors.
    3. A creditor who knowingly acquiesces in a sale made by a trustee under an assignment for the benefit of creditors, and accepts his proportional share of the proceeds of the sale, is estopped to deny the validity of the sale.

      dippeal from, St. Louis Land Court.

    This was an action in the nature of an action of ejectment, to recover possession of a lot in the city of St. Louis. Plaintiff claimed title by virtue of a deed of conveyance, dated May IT, 1853, executed by one Thomas J. Meier as trustee for one John T. Schultze. The defendants answered, denying all the allegations of the petition. A. J. P. Garesché, claiming to be landlord of the other defendants, was made a co-defendant, and filed his answer, alleging therein that the deed of trust from Schultze to Meier was fraudulent and void, as having been made with intent to hinder and delay the creditors of Schultze; th'at the deed from the trustee, Meier, to plaintiff, was void for the same reason. Defendant, Garesché, claimed title by virtue of a sale oír execution under a judgment, dated April 22d, 1852, against the said John T. Schultze and one Henry Mauck, and a deed from the sheriff of St. Louis county, dated September 29, 1858, conveying to defendant all the interest of the said Schultze in the premises in controversy.
    On the trial, evidence was introduced by plaintiff tending to show that Schultze, on 31st December, 1851, conveyed to Thos. J. Meier the premises in controversy, in trust for the payment, in fifteen months from the date of the deed of trust, of the claims of certain creditors (among whom were E. & H. Si-mons, who were specified in the deed of trust) of the said Schultze and his partner, Mauck, the payment of which was assured by Schultze ; that Schultze having failed to pay, the said Meier, in pursuance of the deed of trust, at the request of Charles B. Lord, the attorney of the said E. & H. Simons, about the 10th day of April, 1853, gave the notice required by the deed of trust, and proceeded to sell on the 16th of May, 1853, the trust property to Peter Gutzwiller, the plaintiff, and executed a deed, dated May 17th, 1853, conveying the said premises to plaintiff; that Charles B. Lord attended the sale— bid several times for the property — received the share of the proceeds of the sale due to his clients, E. & H. Simons, and gave a receipt therefor in their name. Evidence was also introduced, to the admission of which defendants objected, tending to prove the good reputation of the plaintiff for honesty.
    Evidence was introduced on the part of defendant tending to prove that on the 22d day of April, 1852, E. & H. Simons obtained, in the St. Louis Circuit Court, a judgment against Schultze and Mauck for $907 79 and costs ; that on the 30th day of April, 1853, an execution issued under this judgment, and a levy of the same was made on the premises.in controversy August 15th, 1853; that on the 5th day of September, Charles B. Lord, in behalf of E. & H. Simons, assigned to defendant, Gareschó, the judgment in favor of the said E. & H. Simons against the said Schultze and Mauck; that the said Garesché became the purchaser at the sheriff’s sale on the 8th of September, 1853, and received the sheriff’s deed therefor, dated September 29th, 1853 ; that the deed of trust from Schultze to Meier, dated December 31st, 1851, was made with intent to delay and defraud the creditors of the said Schultze ; that Gutzwiller, the plaintiff, purchased the premises in controversy at the trustee’s sale, for the use of Schultze, and in part with money furnished by him. There was also evidence tending to show a sale, in the year 1861, of a stock of jewelry belonging to Schultze and Mauck, to Gutzwiller ; that Gutzwiller paid no consideration for the same, and that the sale was made with intent to delay and hinder the creditors of Schultze and Mauck.

      The following instructions, among others, which it is unnecessary to set forth, were asked by the defendants, and refused by the court:
    “2. If the jury believe from the testimony that Peter Gutz-willer purchased the lot sued for at the sale by the trustee, Meier, on the-day of May, 1853, for the use and benefit of John T. Schultze, or that the purchase money of said lot or any part of it was paid with the means of said Schultze, they will find for the defendant.”
    “ 4. The jury are instructed that the standing and character of Peter Gutzwiller has nothing whatever to do with the matters in issue in this suit.”

      “ 5. The jury are instructed that the responsibility of Peter Gutzwiller, as a man of means and property, has nothing whatever to do with the issues in this cause.”
    Defendant duly excepted to the refusal of these instructions.
    The court gave the following instructions : “ 1. If the jury shall believe from the evidence that it was, subsequent to the execution of the bill of sale of jewelry, understood and agreed upon between the plaintiff and Schultze and Mauck, that the proceeds of the sale of the stock of jewelry was to be applied to the payment of the debts due by Schultze and Mauck, and no consideration was paid by Gutzwiller for said stock, as stated in said instrument, then the same is an assignment of the said stock by Schultze and Mauck for the benefit of their creditors, to the plaintiff; and the conditions [creditors] of Schultze and Mauck, existing at the time of the said understanding, have a perfect right to make the plaintiff account to them for the proceeds thereof towards the satisfaction of their respective demands. 2. If che jury shall believe from the evidence that Charles B. Lord was, at the time of the advertisement and sale of the property by Thomas J. Meier as trustee, the attorney for E. & Ii. Simons, and acted in that capacity until the said property was sold, and that said Lord, as such attorney, participated and bid upon the property so sold, and subsequently accepted the pro rata share of the proceeds of said sale under said deed, as such attorney, then the said E. & H. Simons, or said Garesché as the assignee of said Simons, are barred and precluded from setting up as a defence to this action, that said deed of trust was made for the purpose and with intent tojhin-der and delay the creditors of Schultze and Mauck. 3. If the deed under which defendants claim is under an execution against Schultze and Mauck, in favor of E. & H. Simons ; if, therefore, the jury shall believe from the evidence that the defendant had purchased the interest of said E. & H. Simons in the judgment and execution under which said property was sold by the sheriff, previous to the sale of the sheriff and.subsequent to the sale by Meier as trustee, then the said Garesché must be regarded as only having the same right which the Simonses had at the time; and therefore all acts of said Simonses, by themselves or their attorney, previous and up to the assignment, and all matters brought to the notice of said Simons or their attorney, up to said time, the said Garesché is bound by.”
    Defendants duly excepted to the giving of these instructions.
    The following instructions were given by the court in lieu of instructions asked : “ 1. If the jury believe from the evidence that the deed of trust from Schultze to Meier was made for the purpose and with the intent to hinder and delay or defraud the creditors of Schultze, the said deed was void and is void as against the said creditors and purchasers of the property under the right of said creditors. 2. If the jury find from the evidence that it is true, as charged in the answer of the defendant, Garesché, that the purchase from the trustee, Meir, by the plaintiff, Gutzwiller, was made with the view and intent to hinder, delay and refuse the creditors of the said Schultze, the said purchase and the deed of conveyance made in pursuance thereof are inoperative and void as against the defendants ; and if made with such fraudulent intent, it is not important to the question of fraud or no fraud, whether or no the purchaser paid for the property a valuable consideration in money. [Sic in the record. Rep.] 3. It is not for the court to determine whether or no the facts shown in testimony amount to a fraud. Fraud is a fact to be found by the jury upon the evidence, and is not to be presumed without proof.
    Defendants duly excepted to the giving of these instructions.
    The jury rendered a verdict for the plaintiff ; judgment was given accordingly, and a motion for a new trial having been overruled, an appeal was taken to this court.

      W. L. Williams and Jl. J. P. Garesché, for appellants,
    cited Burrell on Assignments, 527; 1 Raw. 177 ; 6 Pick. 440; 9 Conn. 481; Crutchfield’s heirs v. Hudson, 28 Alabama, 398.

      Hart & Jec7eo, for respondent.
   Scott, Judge,

delivered the opinion of the court.

We do not see on what principle the plaintiff was permitted to introduce evidence of his good character. The rule is stated in the books, that, as evidence is to be confined to the points in issue, the character of either party can not be inquired into in a civil suit, unless it is put in issue by the nature of the proceeding itself. (1 Phil. 176; 2 Greenl. on Evidence, § 54, 55; 1 Cow. & Hill’s notes, 456.) There may be exceptions to this rule, but the cases do not show that evidence of charac-iter is admissible in controversies like the present.

The second instruction asked by the defendants should have been given. The facts and circumstances detailed in evidence furnished sufficient ground on which to base such an instruction. If the purchase made by the plaintiff at the trustee’s sale was a pretended one, or was made with means furnished by Schultze, the plaintiff was not entitled to recover. There was no instruction given which set this point in a plain way to the jury. If any instruction covered this matter at all, it was only by indirection.

From the view we take of the case, we do not see the importance of the principle sought to be applied, that a creditor taking a dividend under an assignment which is voidable as tending to delay creditors, can not afterwards call in question the validity of tbe trust or assignment. (Burrell on Assignments, 527, 543.) Tbe deed of trust, in our opinion, is not void as a matter of law on its face. Its invalidity is to be shown by extrinsic evidence. The point of tbe defendants’ defence is, that tbe plaintiff was a mere instrument, assisting Schultze in defrauding bis creditors, and purchased tbe lot in controversy with means furnished by him. In this view Gutzwiller could have no interest in maintaining tbe validity of tbe original deed of trust. Such being tbe fact, tbe invalidity of that instrument would not place him in a worse condition. If this view of tbe case is not supported by tbe evidence, it is hardly worth while to institute an inquiry whether tbe trust deed was void under the statute of fraudulent conveyances. If tbe deed of trust was valid, yet if tbe lot was purchased with means furnished by Schultze, the plaintiff can not recover; and if the evidence does not show this, there is little use in attempting to overthrow the original deed, as the same evidence must be relied on for that purpose that is employed to show that in making the purchase there was a secret trust between Schultze and Gutzwiller.

No deed under the statute of fraudulent conveyances is an absolute nullity. All such instruments are valid between the parties thereto. They can only be avoided by creditors and subsequent purchasers. If one becomes a purchaser under such a conveyance for a valuable consideration, in good faith, his title will be valid. If, on the other hand, he purchases in bad faith, he will go unprotected, and will .lose his money. Now if/ a deed is made, which a creditor may avoid if he sees fit, yef? if he knowingly acquiesces in a sale by a trustee under such a/ a deed, and accepts a dividend of his debt arising from the pro-’/ ceeds of the sale, does he not thereby affirm the deed ? Ag-¡ cepting a portion of his débt with a full knowledge, would it bej just, with that money in his pocket, to turn around and avoid i the deed under which he obtained it? Should he not at least refund the money he has received before he takes such a step. Notwithstanding the case of Crutchfield’s heirs v. Hudson, (21 Ala. 403,) we are not prepared to depart from the rule laid down in Adlum v. Yard, (1 Rawle, 163,) that though an assignment be in its nature calculated to delay creditors, and therefore voidable, yet, if a creditor take a dividend under it, he can not afterwards question its validity.

The other judges concurring, the judgment will be reversed, and the cause remanded.


text:
    Chambers’ Administrator, Plaintiff in Error, v. Smith’s Administrator, Defendant in Error.
    1. The statutory covenants of indefeasible seizin, against encumbrances, &c., contained in the words “ grant, bargain and sell,” are covenants running with the land. (See Dickson & Gantt v. Desire’s adm’r, ante, p. 161.)
    2. A demand against the estate of an intestate on account of the breach of the statutory covenant of indefeasible seizin, and against encumbrances contained in a deed made by such intestate, is not barred by not having been exhibited against the estate within three years after the granting of letters of administration, where the right of substantial recovery did not accrue before the lapse of the said term.
    1. A. owning a lot of ground gives a bond to convey the same to B. upon the payment by B. of the sum of $1500, within five years; this bond is duly recorded; afterwards, A. “grants, bar-gains and sells” the same lotto C., and C., by a deed of the same tenor, conveys to D.; B. afterwards brings suit for the specific performance of the bond against the administrator of A., and obtains a decree directing said administrator to make a deed to B., which is accordingly done; this deed is dated more than three years after the date of the letters of administration granted to said administrator: held, that the right of D. t® recover for the breach of the covenants contained in the words “grant, bargain and sell” in the deed of A. to C., is not barred by a failure to exhibit the claim against the estate of A. before the expiration of the term of three years from the date of the letters of administration. No demand accrued against the estate of A. until the date of the administrator’s deed.

      Error to St. Louis Land Court.

    This is an action commenced September 14,1853, to recover damages for tbe breach of the covenants of seizin and against encumbrances, contained in the words “ grant, bargain and sell” in a deed of Thomas E. Smith, defendant’s intestate, to one Elias B. Smith. This deed purported to convey in fee a lot of ground in the city of St. Louis, and was dated November 2lst, 1848. It contained the words “grant, bargain and sell,” and was duly acknowledged and recorded. Elias B. Smith, by deed of the same tenor, dated March 11, 1844, conveyed the said lot to William Chambers. William Chambers died May 4th, 1849, and letters of administration upon his estate were granted to plaintiff, Thomas L. Sturgeon.
    Prior to the said deed of Thomas E. Smith to Elias B. Smith, the former had made his bond to convey the same lot to one Sarah D. Todd, upon the payment by her within five years from the date of said bond, July 25th, 1843, of the sum of $1500, with interest. This bond was duly acknowledged and recorded September 15th, 1848. Under this bond, Sarah D. Todd entered into possession of the lot, and paid the annual interest for five years, and at the end of that time she paid over the principal, $1500, to T. E. Smith’s administrator, and instituted proceedings in equity and obtained a decree, December 21st, 1848, directing the administrator of T. E. Smith to make a deed conveying the ^ot to herself. A deed was accordingly made by said administrator, dated December 28th, 1848.
    Thomas E. Smith died December 15th, 1843, and letters of administration upon his estate were given to one Beckwith, December 23, 1843. He gave notice of his administration in due form of law. Beckwith died December 25, 1853, and C, C. Whittelsey was appointed administrator de bonis non of T. E. Smith’s estate. There was no final settlement of the estate of the said Smith when this suit was brought or when the trial in this cause was had.
    Defendant, Whittelsey, in his answer set up as a bar to this action the statutory limitation of three years, within which claims must be exhibited against an intestate’s estate ; also denies the assignment or transfer of the covenants sued on from Elias B. Smith to William Chambers. The court gave the following instruction to the jury: “The covenant in the deed from Thomas F. Smith' to Elias B. Smith of seizin of an indefeasible estate in fee simple, free from all encumbrances, is a covenant in the present tense, and is broken, if at all, as soon as made; and if the holder of the covenant did not present the claim for allowance against the estate of the said T. F. Smith within three years after the date of the letters of administration, supposing that the administrator gave the required notice, the claim of the plaintiff, as stated in this suit, is barred whereupon the plaintiff voluntarily submitted to a non-suit with leave to move to set the same aside. This motion having been made and overruled, the case is brought here by appeal. Exceptions were duly taken by plaintiff. •

      B. H. Hill, for plaintiff in error.
    I. The code of 1849, art. 3d, authorizes the suit by the plaintiff as assignee of the covenants in the deed from T. F. Smith. The action must be prosecuted by the party in interest.
    II. The principal question in this case arises upon the statutory limitation of three years, in the administration act. At the time the three years expired in December, 1846, the legal title was still in Mr. Chambers. The executory control of Smith with Todd was subsisting as an encumbrance, and the case of Collier v. Gamble, (10 Mo. 472,) would only authorize the recovery of nominal damages ; for it could not appear that the title would ever vest under the executory contract until the payment of the purchase money by Mrs. Todd. The title of Mrs. Todd did not become paramount to the title of Mr. Chambers until the execution' of the deed under the decree in December, 1848 ; but yet it was a quasi encumbrance, which, upon the perfection of the legal title, related back to the date of the recording of the contract, August, 1843, and overrides our deed of November following. Unless this be so, William Chambers died seized in fee. But the recording of the contract raised an equity in Mrs. Todd against all subsequent purchasers, and that equity was, after the three years’ bar, turned into a legal estate, and become a title paramount to ours. The case of Collier v. Gamble clearly recognizes the plaintiff’s right to sue for the actual damages after the equitable title was turned into a legal estate. Upon what principle, then, can the right to recover nominal damages for the technical breach of the covenant, bar the plaintiff from recovering the actual damages occasioned by the subsequent total loss of the title ? The contingency upon the happening of which the real damages ensued, could not be foreknown, for it was impossible to foresee whether Mrs. Todd would comply with her contract of purchase.
    III. Was there any limitation after the first three years expired other than the general limitation; and if so, was the plaintiff, under the circumstances of this case, barred by the statute in the administration act ? The bar must be created by statute, or there is none. The true reason why the demand, which is not due, is not barred by the three years, after letters, is, because it is not a demand within the meaning of the act, as against the estate, until it becomes due. This holds good of an ordinary money demand; but such demands are now subject to be proved up as if they were due, by an express statute, so that the bar would apply to them. But this demand of plaintiff was not a demand against the estate of Smith within the meaning of the statute, until 1848. It could only become a demand after the happening of an uncertain contingency. It is not therefore within the spirit or meaning of the administration act. If it had been the intention of the legislature to bar demands subsequently accruing against the estate, if not presented within three years from the time they accrued, it would have been so expressed.

      C. C. Whittelsey, for defendant in error.
    The St. Louis Land Court had no jurisdiction of the subject matter. The suit is to recover money due upon a covenant, and the act creating the Land Court does not authorize the action. (Sess. Acts, 1858, p. 90 ; 20 Mo. 596.)
    II. The deed from E. B. S. to W. C. did not purport to assign any right of action, existing upon the covenants in the deed, arising from any breaches of said covenants, and the deed purporting to convey the land does not pass a chose in action. (Colliery. Gamble, 10 Mo. 467, 472; Mitchell v. Warne, 5 Conn. 497 ; Davis v. Lyman, 6 Conn. 249 ; Greenly v. Wil-cocks, 2 J. R. 1; Hamilton v. Wilson, 4 J. R. 72 ; Abbott v. Allen, 14 J. R. 248 ; Cornell v. Jackson, 8 Cush. 509.)
    III. The covenants, if broken at all, were broken as soon as made, and the cause of action was immediate. (Collier v. Gamble, 10 Mo. 467 ; Reese v. Smith, 12 Mo. 844.)
    IY. The demand, not having been presented within three years, is barred. „(R. C. 1845, p. 91, sec. 2; 17 Mo. 286; 13 Mo. 125; 11 Mo. 237; 9 M. 227; 15 Mo. 322.) The deed made under the decree of the Circuit Court was made in December, 1848, and this suit was not brought until September, 1853, so that in any event more than three years have elapsed since he might have presented his claim. (Finney, adm’r of McAlister, v. State, to use, &c. 9 Mo. 825.)
    Y. Upon the plaintiff’s own showing, he took no estate that would carry his covenants, for he alleges there was no seizin in law, and Sarah D. Todd had an adverse seizin in fact.
    VI. If T. F. Smith had the legal title, then his deed passed it to E. B. Smith, and there has been no breach of the covenant of seizin, and, under the covenant against encumbrances, the plaintiff shows no damage. (See Rawle on Gov. 595; Clark v. Swift, 3 Mete. 390 ; Pierce v. Johnson, 4 Yerm. 255 ; Webber v. Webber, 6 Greenl. 138.)
   LEONARD, Judge,

delivered the opinion of the court.

The questions here are the same that were involved in the case of Dickson & Gantt v. Desire’s adm’r, (ante, p. 151,) and we refer to the opinion in that case for the principles that must govern us here, and shall proceed at once to make an application of them.

Our statute covenant of seizin runs with the land until some damage results from the breach of it; when the right to a substantial recovery arises, the covenant is then broken ; the owner of the estate is entitled to the benefit of it, and his cause of action will be considered to have- then accrued witbin tbe meaning of tbe statute of limitations. If there be a total defect of title, defeasible and indefeasible, and tbe possession have not gone along with tbe deed, tbe covenant is broken as soon as it is entered into, and can not pass to an assignee upon any subsequent transfer of tbe supposed right of tbe original grantee. In such case, tbe breach is final and complete ; tbe covenant is broken immediately, once for all, and the party recovers all tbe damages that can ever result from it. If, however, tbe possession pass, although witbg an estate in fact, although not in law, be tran deed, and tbe grantee have the enjoyment of th8rpi¡ cording to the terms of tbe sale, the covenant land and passes from party to party, until tbe fpa]g results in some damage to tbe actual possesson^ano right of action upon the covenant vests in tbe partyi _the loss falls ;\ and we so held at the present term, in the case to which I have referred. In the present case, however, the possession did not accompany the deed from Thomas E. Smith to Elias B. Smith; and if no right were transferred by that transaction, the covenant was incapable of running with the land, and the right of action accrued immediately, and of course was barred by tbe limitation referred to. It is to be observed, however, that tbe legal title did pass, and although the first grantee was seized, yet it was not an indefeasible seizin in fee, if it be true that tbe title transferred was liable to be defeated by the contract of sale entered into with Mrs. Todd. Upon an express covenant of seizin, merely, it might be otherwise ; but it can not be so under the statute covenant, where tbe obligation imposed is that tbe party is seized of an indefeasible estate in fee simple. When Mrs. Todd’s contract of purchase, which was put upon the record, was completed, she had a right to demand tbe legal title from tbe original vendor, or from Elias B. Smith and bis successors, who purchased in legal contemplation with notice of the lien of Mrs. Todd’s contract. This contract was completed and subsequently enforced against the original grantor, or, rather, against his estate, by an administrator’s deed, made under an order of the proper tribunal for that purpose, and the present cause of action then accrued, and to the party who then owned the title derived from Thomas Smith through Elias Smith. The inferior court erred, therefore, in declaring that it accrued, if at all, when the original deed was made, and was barred by the lapse of three years from the grant and notice of administration. In reference both to the limitation and to the person entitled to the benefit of the covenant, we look in a case of the present character to the right of substantial recovery, and will not hold a party barred by the lapse of time which ran before he was allowed to recover (for we make no distinction here between no recovery and a mere nominal one) ; nor will tfe deny the action, allowed only in respect to the actual damage, to the party upon whom it has fallen, and allow it to the orginal grantee, except se-far as he may be bound to indemnify his immediate grantee by reason of his own covenants.

We remark, in conclusion, that the parties have proceeded before us upon the idea that the administrator’s deed divested the legal title out of Chambers, to whom it had come through Elias B. Smith, and, whether it had this effect or not, by relation to the time of the contract or otherwise, can not be material to the real rights of these parties ; for, if it had not, and the legal title were still in the party to whom it had passed, it was but the dry, naked title, held in trust for Mrs. Todd, and subject to be divested, as a matter of course, upon a proceeding for that purpose, founded upon the original contract and subsequent acts. And we may dispose of the case, for the present at least, upon the grounds upon which it has been placed, as the right of action certainly, under the view now taken of the law, did not accrue before, the making of the administrator’s deed, as the court below declared. The judgment is reversed, and the cause remanded ;

Judge Hyland concurring.


author: Leonard, Judge,

text:
    Laumier, Defendant in Errror, v. Francis, Plaintiff in Error.
    1. A person who is interested in the event of a suit, in that he is hound to pay-half the damages and costs in case of a recovery by plaintiff, is not “ a person for whose immediate benefit the action is defended,” within section 2 of article 25 of the practice act of 1849, (Sess. Acts, 1849, p. 100,) and consequently is a competent witness.
    2. Definition of a servitude or easement.

      jError to St. Louis Law Commissioner’s Court.

    This was an action commenced before a justice of the peace to recover damages alleged in the complaint to have been caused bj the accumulation of water up^on a lot in possession of defendant, adjoining a building in possession of plaintiff. Upon the trial before the Law Commissioner’s Court, one R. R. Walton was offered as a witness, who stated on his voir dire that he was interested in the suit, and expected to pay half the damages and costs, if plaintiff should succeed. He was rejected. The defendants duly excepted. It is unnecessary to set forth the evidence bearing upon the nature of the nuisance alleged to have been committed. The plaintiff obtained a judgment for fifty dollars. The defendant brings the case to this court by writ of error.
    Skinner, for plaintiff in error.

      Hart & Jecho, for defendant in error.
   Leonard, Judge,

delivered the opinion of the court.

1. -The court erred in excluding the witness Walton, offered on the part of the defendant, although he testified on his voir dire that ‘1he was interested in the suit, and expected to pay half the damages and costs.” By the new code, no person is to be excluded as a witness upon the score of interest; but this provision does not extend to “a party to the action, nor to any person for whose immediate benefit this action is ‘prosecuted or defended.” This section is copied literally from the original New York code, which was taken, in this particular, substantially from Lord Denman’s act of the 6th and 7th Vic. ch. 28, sec. 1, where the words of the exception are, that the act “ shall not render competent any party to any suit, &c., individually named in the record, or any lessor of the plaintiff, or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part.”

In Daviess v. Crain, (4 Sand. S. C. R. 355,) the Superior Court of the city of New York held that an insolvent debtor, who had assigned his property for the payment of his debts, was a competent witness in an action prosecuted or defended by his assignees in relation to his estate, the suit in such case not being prosecuted or defended for his immediate benefit within the meaning of the code. In the Farmers’ & Mechanics’ Bank v. Paddock, (1 Code Reporter, 81,) it was held that the suit was not defended for the immediate benefit of a person who stated that he was the real owner of the note sued upon, and that he had indemnified the defendant against the costs of the action, and this person was- accordingly received as a competent witness for the defendant; and in another New York case, (Weston v. Hatch, 6 How. Prac. Rep.) which was an action against an executor for work done for the testator, a residuary legatee, under the will, was admitted as a competent witness for the executor, and the court referred to the case of of a cestui que trust or ward, where the trustee or guardian was prosecuting or defending, as cases falling within the exception.

In the English case of Hill v. Hitching, (8 C. B. 299,) which was an action by a ship-broker to recover his commission, a witness, called for the plaintiff, stated that he expected to receive one half of whatever should be recovered, pursuant to an agreement between himself and the plaintiff, and yet it was held that he was not a person in whose immediate and individual behalf” the action was brought, either wholly or in part, within the meaning of the proviso, so as to exclude him from being a witness. And Tindall, Chief Justice, remarked : If it bad appeared that tbe plaintiff' bad made over to Cra-mond (tbe witness) a moiety of tbe commission, then I should have said that Cramond was a person in whose immediate and individual behalf tbe action was in part brought. But that is not so. Cramond, though be claims a moiety of the commission, under a separate and distinct agreement with the plaintiff, has no right to lay his hands upon any portion of the money to be recovered in this action.” And Maulé, Chief Justice, said : “ The general scope of 6th and 7th Vic. ch. 28, is, to allow the examination of all persons, notwithstanding they may have an interest in the event of the suit. The meaning of •the proviso is, that no person who is the formal plaintiff in the record shall be called as a witness, nor any person who, though not a formal plaintiff, is yet substantially so. For instance, suppose a man assigns a bond and sues the obligor in behalf of the assignee, the latter would be a person in whose immediate and individual behalf the action was brought, and therefore not an admissible witness.”

Without, however, undertaking to lay down any general rule upon this subject, it is sufficient for our present purpose that very clearly this suit was not defended for the immediate benefit of the rejected witness, even supposing that he were under a legal obligation to indemnify the defendant against one half of the anticipated recovery. As the witness in the English case could not, in the language of the judge, lay his hand upon the money recovered (in which event the suit might be considered as prosecuted for his immediate benefit), so, in the present ease, the plaintiff could not exact the recovery immediately from the rejected witness ; and therefore, in neither case could the suit be considered as prosecuted or defended for the immediate benefit of these persons, although in both cases part of the money recovered was ultimately to accrue to one of them, and fall as a burthen upon the other. The result is, the judgment must be reversed and the case retried, and, in view of this, it may not be improper to make a remark in reference to the merits of the controversy.

2. In the civil'law, a servitude, which is but a single right of property, detached from the general ownership, and granted to another, and is called in our law an easement, is a burden affecting lands, by which the proprietor is restrained from the full use of his property, or is obliged to suffer another to do certain acts upon it, which, were it not for that burden, would be competent solely to the owner ; and they are divided, in reference to their origin, into natural, legal and conventional. Where two contiguous fields belong to different proprietors, one of which stands upon higher ground than the other, the inferior field is obliged to receive the water that falls from the superior, and this is given as an instance of a servitude constituted by nature. (Irskine’s Institutes, 408, 409.) We, of course, know nothing about the facts of the present case; but if such was the natural, situation of these lots, and the plaintiff dammed up the water on the defendant’s lot, by erecting a house upon his own, it is very obvious that he can not recover any damage occasioned thereby to his own property, in the absence of any statute, state or municipal, in relation to the duties of contiguous proprietors, and of any agreement between the proprietors themselves upon the subject. In the case supposed, the plaintiff himself would be the author of the nuisance, and of course could not hold another responsible for the damages that resulted to him from his own act. In Cooper v. Barber, (3 Taunton, 99,) the court appear to have been of opinion that a party who had collected the water, which had fallen upon his own ground, into a ditch, from which it percolated through the earth into the plaintiff’s cellar, was liable, unless he had a right to do so by grant or prescription ; yet no one supposed he would have been liable in that case, if the plaintiff had himself caused the accumulation of water from which the damage resulted.

We remark, further, that the fact that the defendant commenced filling up the lot, but desisted before the work was completed, is certainly very slight, if indeed any evidence by itself, that the defendant had notice of the damage the water occasioned to the plaintiffs, and of a request to remove it. The judgment is reversed, and the cause remanded.


text:
    Pope & West, Defendants in Error, v. Risley and others, Plaintiffs in Error.
    1. Where promissory notes, purporting to have teen executed by an agent, become the subject of a suit, the ordinary denial of their execution, without the verification by affidavit, required by section 23 of article 4 of the practice act of 1845, (R. C. 1845, p. 819,) will be sufficient to put the plaintiffs to the proof of their execution.
    2. An admission made by a member of a partnership, after the retiring from the firm of a former member, can not be used as evidence against such retired partner.
    3. A partner retiring from a firm will still be liable for debts contracted by it in favor of persons, who had previously dealt with the firm, and have had no notice of his retirement.
    4. This notice must be actual, and be brought home to the parties; or at least credit must have been given under circumstances from which actual notice may have been inferred. Notice in a newspaper, though published in the usual manner, will not, of itself, be sufficient as to those having former dealings with the company.
    5. Where promissory notes, purporting to have been executed by an agent, it must appear that the agent had authority, express or implied, to sign the same.
    6. The statute of limitations may be relied on as a bar by one of several defendants.

      Error to St. Louis Court of Common Pleas.

    This was a writ upon certain promissory notes, purporting to Have been executed “for the St. Croix Lumber Company,” an association and copartnership of which defendants were alleged to be members. The notes were signed thus : “for the St. Croix Lumber Company. H. S. Wells, sec’y.” It is unnecessary to set forth the evidence introduced on the trial, as the points decided can be readily understood from the’ opinion of the court.

      Biddlecome and «/?. S. Jones, for plaintiffs in error,
    cited 20 Mo. 530; 4T.B. 516 ; 1 Denio, 445.

      Krum & Harding, for defendants in error.
   Scott, Judge,

delivered tbe opinion of the court.

There is nothing in the evidence preserved in the bill of exceptions which shows that there was any express authority in the agent of the St. Croix Lumber Company to sign promissory notes in its name; nor is there any thing showing that the agent was entrusted with the management of any such business as would incidentally confer an authority to execute notes in the name of his constituents ; neither was it maintained that, as a matter of law, a mere clerk or secretary had authority to bind his employer by signing notes in his name. Under these circumstances, the plaintiffs relied for proof of authority on the usual course of business of the company and its recognition of the acts of agent in signing notes in its name, in accordance with the rule that, where a clerk is usually entrusted to sign notes, or usually does sign for his master, which are afterwards paid or recognized to be valid, he is presumed to possess a rightful authority to do so in other instances, within the scope of the same business. (Story on Agency, § 55.)

1. The 23d section of art. 4 of the practice act of 1845 is not applicable to notes executed by an agent. The case of Wahrendorff v. Whittaker, (1 Mo. 205,) shows that, under the plea of non-assumpsit in an action on a note executed by an agent, the agency, must be proved before the note can be read in evidence, although the truth of the plea is not supported by an affidavit. The notes, therefore, the subject of this suit, purporting to be executed by an agent, the ordinary denial, such as is required by the present practice act, would seem to be sufficient to put the plaintiffs to the proof of their execution.

2. The admissions of one member of a firm during its continuance, in relation to its concerns, is binding on the company. After a dissolution, an admission by a partner has no force as evidence against tbe former member. (Story on Part. § 107, 323.)

3. Where an ostensible or known partner retires from a firm, he will still be liable for its debts and contracts as to all persons who have previously dealt with the firm and have no notice of his retirement. (Story on Part. § 160.) If the plaintiffs had dealt with the company before the retirement, of any of its members, in order to have relieved them from future liability, it was necessary that notice should have been given to the plaintiffs of their retirement and this notice should have been actual and brought home to them, or, at least, the credit must have been given under circumstances from which actual notice may have been inferred. Notice in a newspaper, though published in a fair and usual way, will not of itself be sufficient as to those having former dealings with the company. (Story on Part. § 161.)

4. The three instructions given by the court, at the instance of the plaintiffs, can not be sustained. They omit to charge the jury that there must have been authority, either express or implied, in the agent for signing the notes, or that the agent was usually trusted to sign notes, or usually did sign notes for the company, which were afterwards paid or recognized to be valid, and that the notes sued on were in the same scope of business in which the recognized notes were. That the notes were executed on behalf” of the defendants, did hot show that they were executed with their consent and approbation. The agent may well have signed the notes on behalf of the company, and yet have had no authority to do so. The witness> who goes farthest in this-proof says that the St. Croix Lumber Company gave orders and due bills by H. S. Wells, sec’y ; that he had them frequently. There is nothing said showing a recognition of these acts by the company. The word “ due bills” is subject to criticism, and might have been explained. In the testimony, there may be found facts and admissions which bind particular members of the firm; but, according to the rule stated above, the admissions of a member are no evidence against a retired partner.

5. There is nothing in' the point in relation to the statute of limitations ; the case of Keeton’s heirs v. Keeton’s adm’r (20 Mo. 530,) is not applicable. That was a* proceeding commenced under the old practice. What was said in that case relates to joint plaintiffs. Nothing is clearer than that the statute may be a bar as to one defendant and not as to another.

The judgment is reversed, and the cause remanded;

the other judges concurring.