SCHNELLE & QUERL LUMBER CO. V. BARLOW. SCHNELLE & QUERL LUMBER Co.
(Oircuit Oourt, 8.
York. May 8, 1888.)
DEEDS-STATUTORY CONSTRUCTION-" GRANT, BARGAIN, AND SELL. It
Under 1 Rev. St. Mo. 1879, c. 20, § 675, p. 110, as construed by the supreme court of that state, the words" grant, bargain, and sell, " used in a conveyance in which an" estate of inheritance in fee-simple is limited, " amount to a covenant of seizin of the estate so limited. and the covenant runs with the land. In Missouri ejectment is a mere possessory action and a judgment therein confers no title upon the party in whose favor it is given. It is no defense, therefore, to an action in the United States circuit court in New York, by the grantee of land in Missouri, to recover damages for breach of covenant of seizin, that the covenantor has succeeded to the rights .of the prevailing party in ejectment, and has duly conveyed them to the plaintiff, in the absence of other proof of title in such prevailing party. A covenantee, in Missouri, under a covenant of seizin is not bound to wait for actual dispossession, but may at once, upon the hostile assertion of a paramount right or title, payoff or extinguish the right by purchase; and his measure of damages is the reasonable sum paid for such title. The life-tenant of land in Missouri compromised litigation with B., who claimed an interest in it" by taking from him a deed of nineteen-thirtieths, and giving him in turn a conveyance of the remaining eleven-thirtieths. Upon her death intestate, the remainder-men in' fee, who were also her children, set up title to the land conveyed to B., and he :filed bill to remove cloud. The bill was dismissed, and the dismissal was affirmed by two appellate courts, on the ground that the children 'were not estopped from asserting title to the land B. had got by reason of the fact that they had 'Succeeded as heirs to the land he had given their mother in exchange. S., who had bought B;'s land, and been compelled to pnrchase the interest of the heirs. then sued B. on his covenant of seizin in the United States circuit court in New York. Held, that neither the plaintiff nor the defendant would have had a valid defense in an action of ejectment, in Missouri, at the suit of the remainder-men.
COVENANTS-SEIZIN-TITLE BY JUDGMENT IN EJECTMEN'l'.
SAME-PuRCHASE OF PARAMOUNT TITLE.
At Law. Oharles a. Burlingham and J08qJh A. Shoudy, for plaintiff. Wm. D. Shipman, for defendant. SHIPMAN, J. This is an action at law, in which a jury trial was waived, by written stipulation duly signed by the parties, and the case was tried by the court. The action was brought to recover the damages which were alleged to have been sustained by the plaintiff by reason of the breach of the covenant of seizin in the deed of the defendant and his wife -of a lot of land in St. Louis, Mo., to Lesley Garnett. The facts which, upon such trial, were proved and are found by the court to be true, are as follows: The land in question is property described in the complaint, and is situated on the south-east corner of Eighth and Mullanphy streets in said St. Louis, having a front of 36 feet 3 inches on Eighth street, and a depth of 125 feet on Mullanphy street. In the partition of the estate -of John Mullanphy, in April, 1842, the partition proceedings having been instituted in the month of August, 1841, said lot was set off and .aparted to his daughter, Mrs. Ann Biddle, who died in January, 1846,
having devised an undivided one-fifth interest in a tract ofland, includof her wife of Dening said lot, nis Delaney, "for and during her life, and from and after her death to the use of the heirs of her body living at the time of her)death, amI for default of such issue then to the use of my own right heirs, forever," Mrs. Delaney, after the death pfheraa,id husband, n1arried Henry Boyce, said lot was and'upOll the partition of Mrs. Biddle's estate, in 18M, allotted to two trustees, appointed under an antenuptial settlement of the said Henry Boyce and wife, "to the use of Octavia (wife of Henry for and during her life, andfrQm. a,nd after her death to the use of the heirs ·of her. body living. at the time of her death , and for default of such issue then to the use of the right heirs olAnn Biddle deMrs.' Boyce diedoh November 12,187,6, leaving three children, JohoO F. Delaney, Jane Lindsay, wife of Andrew J. Lindsay, and Mary E. Boyce. On April 15, 1867, Mrs.' Boyce and one of her trustees, her said being in life, but llot joining insf\.id con-' veyance"executed a deed ofsaid lot in fee, with general and special covenants, to the defendant, said deed purporting to be anabi;olute conveyance thereof. On March 18, 1872; the defendant and his wife conveyed said lot in fee-simple to Lesley Garnett. The words ofc.onveyance which were used in said deed Were "grant, bargain, and sell." The.statute',of Missour,i; in existeI).,ce a.t the date. and execution of said eyer since the existing statute in said state, is as follows:
grant, ally' estate of inheritance in :fee-simple is limited. s11a11, unlesli ,restrained by expressed terms contained in Iluch.conveyances, be construed to be the following on the· part of the grantor. for himself· and his heirs, to the grantee, his heirs and assigns: First, that the Was, at the time of the execution of suchooilveyanee. seized of an indefeasible estate in fee-simple, in the'real estate' thereby granted ; second. that such real estate was, at the time of the execution of such conveyance, free all incumbrallces done or suffered by the grantor or any person under whom heelaims; tli ird , for further assurances for sucbreaI estate to 'be made by the grantor and' his heirs and to the grantee and his heirs an4 assigns; snll. may be sued upon in the same manner as if such covenants were expressly inserted ill the conveyance." .1 Rev. St. Mo,1879,.p.llO.
, The settled construction pi this statutory covenant by the highest court of MiSsouri, .as first declared in DicksonV'. De.sire, 23 Mo. :151, and substantially affirmed in Magwirev. Riggin,44 Mo. 512;, Jones.v. WhitSett, 79 Mo. 191, l!Jld Allen v. l(enrwd1J, 91 Mo. 324, 2 S. W. Rep. 142,is, as stated,ip Magwire v·.Riggin, that the words" grant, bargain, and sell ". are a covenant that runs with the land, ofindemnity, continuing to successive grantees,and inuring to the one upon whom ,the loss falls." A contrary <lonl'ltruction had been originally announced by the same court in CoUier v. Gamble, 10 Mo. 467. Said Garnett,and wife conveyed the said latin fee.simple to Charl£!sF.. subsequently, on A,ugust 8,_ 1884, the title of said /:l.ud w.ife became vested in the plaintiff, whioh immediately en-, iJ;ltoaml still Continues in possession of said land. On March 12,
SCHNELLE & QUl!:RL LUMBER CO. V. BaRLOW.
1886, and after the termination of the suit of Bar'tow v. Delaney, after mentioned, the said heirs of the body of Mrs; BoycE' caused to be served upon· the tenant bf the plaintiff a notice demanding the surrender of said lot, and notifiing the tenant to payno rent but to them. The plaintiff having examined its title to the said premises, became satisfied that it had none, and, being threatened by the said heirs with a suit in paid to them,on April 15, 1886, the sum of $2,537.50 for said ,land, which was a reasonable and moderate price therefor, and thereup0n received a deed from said heirs, which conveyed to it all their right, title, and interest in said land. On August 8,1846; Norman Cutter com'menced in the proper court in St. Louis an action of tres pa:3S and against William Waddingham, demanding the possession of a large tract of land claimed by the heirs of John MUllanphy as 8 part of his estate, of which tract the lot in question was a part, and damages for of the plaintiff therefrom. Waddingham was the tenant in possession. The living heirs and representatives of John Mullanphy were made party defendants. Mrs. Biddle, who had theretofore died, w8sildta: party. Mrs. Belyce was a party; her children were not parties. The litigationl continued till February 4, 1865, when a verdict was rendered Infavelr of the plaintiff for the possession of eleven undivided thirtiethsofthewhole tract, and damages of $27,500 for the trespass and ejectment and withholding possession and a mohthlyvalue of $192.50 fOrimysubsequent possession. An appeal was taken to the supreme <lOurt of 'Missouri, but was not prosecuted, and was dismissed by the appellll.t1ts in December, 1868; On June 5,1852, the said Cutter sold his interest in nine twenty-fourths of the land described in the declaration in sa.id; s,uit to Henry D. Bacon,8n,d on Fepruafy 15, 1854, conveyed tbe, remainder of said tract ,to said Bacon and Daniel D. Pagej and said Page and Bacon, by deed dated September 23,1857, conveyed the whole tract to the defendant f01[$125,000. In Octavia Boyce, and the defendant entered intoim by .which .they agreed for the pUJ.:posesofeettlingsaid litigation, that the defendant was entitled to of all partJ'j, of 'eaid tract of lapd to which the said Boyce derived title under John or Bryan MullanphyorAnn Biddle, or which had been theretofore set off to her in partition, and that she was entitled to eighteen-thirtieths thereof, and that partition should be made of said interest.... The result was a partition and conveyances between Mrs. Boyce an(1 the defendant of the portion of this tract of land which had boon alCertain of the lots which he conveyed to. her have descended to het said children which they still hold. He also indemnified Mrs. Boyce against any liability under said Cutter judgment. In part fulfill'J'il'erit ofthis agreement, she made the conveyance of the lot in questiori 'Which has been heretofore mentioned. The twelve-thirtieths was itt'sei'Ked, by piistake eleven-thirtieths. Ip: tbflJlltter part of 1881, it came to the. knowledge of the defendant that the'children of Mrs. Boyce were claiming title to the two lots con2!3 Mo. 206, 33 Mo. 269:
veyed to him 'bY ·their mother, of which she had only ll, life-estate under the will of He there\lpon instituted a suit in equity before the circuit for the city of St. Louis against said Ghildren, in which he averred tqat he had recently and believed it, to be true, and so stated. that the said Boyce had only It life-estate in said tW9 pieces of land, and that ppon her death,the same went in fee-,simple absolute to her children, and that they still own.ed and possessed all the property which he had conveyed to in exchange for said land, .and had'inherited from her otherre,alty to the value of $300,000, and,that their claim was,a eloud upon, the title of said two pieces, and praying tha:tthey be enjoined fromclahningany interest therejn, and that the title to the same diverted frolU them and, vested in him; and for other proper relief. Said circuit Gourt sustained a demurrer to bill, IlJld eqtered judgment for the defendants. ,The St. Louis court of firmedthejudgment upon the following grounds: A married woman cannot convey real estate without the joinder of her husband; (2) a married ,Statute of Miswoman who owns a life-estate in land, cannot(under souri) execute a valid general warranty deed of the;feej'.(3)a bill to enforce, a deed of the, fell, of the land conveyed by the owner of the life--estate is without equity as, against the remainder-men who are also the heirs: of,tijeowner of 'the life-estate." Barlow v. Delaney, 13 Mo. App. 591. Upon appeal to the supreme court of Missouri, thejudgment of the court of appeals wasatl,irmed, upon that,conceding that N:rs. Boyce had a right to convey, and that her covenants wl;lreobligatory upon her, they do not estop her children from asserting their, title to the lots in controversy. The llourt said:
..It Is urged. that it *ould be inequitable to permit defend'ants to hold the lots of land conveyed by plaintiff,and also recover the lots in controversy, but if theysbould recover, those .lots, and the covenants in Mrs·. Boyce's deed are binding ppon her children, then, to the extentQf the estate they inherited from her, plaintiff will have his action on the covenants. If,they\yere of no binding force. eithl'r upon her or her heirs. plaintiff certainly has no legal demand against them, which can be enforced against those .lots. He may have an equitable right to"have the lots conveyed by him cbarged with a lien for tilt' unpaid ,purcllllse price, which would be the value of the lots conveyed by Mrs. Boyce, at the time of that conveJ'ance; but, in no event. has he the right to have their title in the lots in question vested in 86 Mo. 587. 58!:!.
The conclusions of law, upon the foregoing facts are as follows: 1. The covenant of seizin of an indefeasible estate in which was contained in,the defendant's deedto Garnett, runs with the land. . ' "Since the ordiJ,arya4ministration of the. law is carried on by the state courts,.it necessarily lJappens that by thecourse of their deciSIOns certa,in rules are established which become' rules, of property and action in the state, and have all the effect of law. and whicll'it would 'be wrong 'to disturb. 'This is especially true with 'regard to thell\ w of real estate,: and l the construction of state constitutions and 'statutes. Such established :rules are always regarded by the federal courts 110 less than by the state courts themselves, as authoritative declarations of what the law is." Burgess v. 107 u. S. 20,.
SCHNELLE &: QUERL LUMBER CO. V. BARLOW.
2 Sup. Ct. Rtlp. 10; Ohicago Oitv v. Robbins, 2 Black, 418; Townsend v. Todd, 91 U. S. 452.
2. to the evidence, the defendant was never seized of an indefeasible estate in fee-simple in the lot which he conveyed to Garnett. He does not claim that he had such a title, except as to eleven-thirtieths thereof. As to nineteen-thirtieths which he supposed he obtained by the deed of Mrs. Boyce, it is conceded, especially by the suit of Barlow v. Delaney, that the legal fee of that portion was never conveyed to the defendant. It is manifest that Mrs. Boyce, who derived all her title from the will of Mrs. Biddle, had only a life-estate. As to the eleventhirtieths, the defendant relies upon the judgment in the Cutter ejectmenL suit. The conveyances to Cutter, if any ever existed, are not in evidence. His suit was based upon his right of possession. The record does not show that any other right was in issue. No testimony was offered, out-.. side of the record, to show that any other question was actually in issue; and the Missouri authorities are abundant to the effect that, under the statutes of that state, ejectment is a possessory action, and that a judgment therein confers no title upon the party in whose favor it is given, and is not a bar to a subsequent suit in regard to the same land between the same parties, while it may be evidence in such a suit. Kimmel v. Renna, 70 Mo. 65; Ekey v. Inge, 87 Mo. 493; Ewing v. Vannewitz,8 Mo. App. 602; Hogan v.Smith, 11 Mo. App. 314. The statute in the revision of 1855, that a judgment in ejectment, of nonsuit, should be a bar to any other action between the same parties, and upon which the supreme court in Miles Y. OaldweU, 2 Wall. 35, favorably commented, was repealed in .1857 . Furthermore, the Boyce heirs were not parties or privies to the Cutter ejectment. It is true that their mother, who had a life-estate in the land, was a party, but they derived their title to the lot in question from Mrs. Biddle, and it seems that a judgment to which the tenant for life isa party is not evidence for or against a reversioner, who was not a party, "because the reversioner does not claim through the tenant for life, but enjoys an independent title." 2 Tay!. Ev. 1356; 1 Green!. Ev. § 536; Bull. N. P.232. 3. Upon the testimony in this case, neitherthe plaintiff nor the defendant would have had a valid defense in an action of ejectment, in Missouri, at the suit of the Boyce heirs. The defendant truly says that, "when the grantee surrenders to the paramount title, he must show that it was a valid and subsisting one, capable of being enforced, and was actually asserted, or he can recover only nominal damages." Morgan v. Railroad 00., 63 Mo. 129. And upon this point, the defendant insists -]i?,rst, that there is no proof that the Boyce heirs had a paramount title from a party in peaceable possession; and, second, that, it being shown that he had paid the mother of the Boyce children for the fee in this lot by a deed of land which they inherited and still hold, an equity arose against the assertion of their title to this lot of which they were out of possession, or an equity existed against their taking possession, which a Missouri court would have enforced if they had brought an action of ejectment, the statutes of that state permitting both legal and equitable
., F,IllJ;)ElB.J\p . REPORTER.
defenses in ejectment.. ' As to·tbe,fil:st point, .asPl\S already been said t the legal title of the Boyce children tQ nineteen-thirtieths is undisputed, and the admissions in the cQmplaint of Barlow.against Delaney sufficiently establish, .&S against :rdr Barlow, their legal tit,Ie to the eleven-thirtieths. The second is the dllfendant's strong point, and he earnestly in/.lists, it being admitted that the Boyce heirs have inherited from their mother, and now own the land which was conveyed to her in consideration of her conveyance of the the lot in question, that a Missouri court would in an action ofejectn1ent by them, prevent their obtaining pos/.lession until the equiLiesagainst the enforcement of their legal title were satisfied or removed. .This w:as, in substance, the question which was before the Missouri courts in llarlpw v. Delaney. The demurrer admitted the facts which were alleged in'regard to the inequitable conduct of the. Boyce heirs,. and the bill, after its statement of the grounds of the estoppel, prayed, inter alia, for an injunction against them from claiming any interest, title, or estate to said lots, and. for any further proper relief. Two appellate courts the bill; the .last upon the express ground that ,the children were not estopped from asserting their title to the land in controversy, put that the plaintiff "Vould have his aC7 tion upon the covenants if the children were bound thereby and recovered the lots, and if the binding force, that the plaintiff had no legal demand which could be enforced upon these lots, but suggested thll.t Pemight "hav'e.an equitahle right to have the lots conveyed by hirn"charged, with a lien for the \lnpaid purchase price." A.ny speculation upon ,what the Misso\lri court could do seemS to be useless in view of what the highest court in. state has done by its refusal to prevent the heirs from, makinK claim to the land in controversy. Ith,as virtually .decided that Mr. Ba.rlow.has no equities therein which it will recognize" 4. The plaintiff was justified ;his purchase; of the paramount. title without waiting for and the weaSUl'e of his damage is.the reasonable .8um whi<:h,hepaid for a. "The covenantee is notbQunlitQ wait for actt,lal,dispossession, but may, after assertion," (the hostile of a Pilramou.nt right or title by auit orotberwise) "payoff or extinguish the right by llurchase; and his measure of damages will be the reasonable value of the right so discharged ot tinguished by him." Ward v. Ashb1"OQk, 78 Mo. 517; Hall v. B1'ay, 51 MI}.
The plaintiff is entitled to judgment in his favor for $2,537.J>O. with interest from A.pril15,1886, and costs. .
LAFLIN ·v.carcaGO, W. '" N. BY. CO.
CHICAGO, W. & N. :&1:".:CO.'
(Oircuit Oourt. E.
Decembei 10. 1887.)
In proceedings to recover damages for the construction of a railroad across P!emisesused:as a summer resort, plaintiff having shown by keepers. of .simIlar resorts that the proximity of the road would in their opinion impairlhe business of the hotel, defendant' offered to prove by witnesses who kept hol tels near the tracks and' depot grounds of other railroads that .hotels were not injuriously affected thereby. Held, that the testimony was irrele. vant. to ABATEMENT AND REVIVAL-AGREEMENT TO ARBITRATE. A mere ell'6cutory agreement to arbitrate entered into by parties to a proceeding to recover damage!! to land resulting from the construction ofa rail: road, does not abate the suit, or work a discontinuance, where no submission halpbeen actuallytnade, and no arbitrators actually chffilen; and this is especilllly so where, the party setting up the agreement as a bar has gone. to trIal without objection upon the merits.
At Law. This Wal\ a proceeding for ascertaining the damage to certain premises situated in Waukesha, Wis., owned by the plaintiff, and alleged to have been injured by the construction of the defendant's foad across the same. Connected with said premises was a hotel, kept bythe plaintiff for the accommodation of summer guests, known as the "Fountain House," with its appurtenances; which included a mineral spring, and pleasure grounds, and drives for the use of guests. On the trial the plaintiff called witnesses .engaged in the summer hotel business at other points and places, to testify whether, in their opinion, based upon their experience in such business, the construction and proximity of the defendant's railroad would have an injurious effect upon the business and patronage of the Fountain Hous,e. In reply to this testimony the defendant called witnesses who were engaged in the business of conducting and managing hotels situated near the tracks and depot grounds of other railroads;, and it was sought to show by such witnesses that the proximity of their hotels to railroads had no injurious effect upon the business of such hotels. It was admitted by counsel for the defendant that it was not intended to call for the opinions of such witnesses in relation to the probable effect ofthe construction of the defendant's railroad upon the business of the Fountaill House; the object of the defendant being simply to show that the hotels kept by the witnesses in other places were not injured by their proximity to railroads. This testimony was ob· jected toby. counsel for the plaintiff,. as inadmissible, on the ground that the tendency and effect of it would beto introduce into the case collateral issues not Pertinent to the issue here to be trled, which related solely to the effect upon the Fountain House of the-construction of the defendant's railway. The defendant introduced in evidence an agreement entered into by the part1es to the commencement of the suit.
See 33 Fed. Rep: