FEDERAL Ul>ORTER, '\"01.40. BREWER, J. This case is now submitted for final bearing on pleadings and proofs. It was before thill court on demurrer to the bill a year ago, and an opinion was filed by my Brother THAYER, in which several questions were considered and decided. ·S6Fed. For.!l history of the facts out of which this litigation arises, see that opinion, and the case same 86 Mo. 583. A restatement of the facts is therefore unnecessary.,. .' :. Counsel for the defendants have challenged the conclusions expressed by my Brotl;ler THAYER,and h/tve, reargued to some extent the questions then decided. We have together examined those questions as as the others in the case,aIid All-Ve, reached the following conclusions: . It may he stated generally that the claim of complainants is that a covenant il1a from Mrs. Boyce has been broken, and this bill is filed to recover on account of that breach. ,It is, in the first place, insisted that there is no equity in the bill,becausethe extentof Mrs. 'Boyce's title was disclos,ed by the public of which complaitiants' ancestor, Mr. Barlow, was charged with notice. In other words, the claim is that a covenantee cannot recover of the covenantor forbreachofctl\Tenant if atthe time of the execution ofthe covenant he knows of the defect covenanted against.' A statement of this proposition carries its own answer. The very purpose of the covenant is protection to hold. thatpIiecan be protected only against unknown defects would be to rob the covenant of more than one-half its value, besides d,estroying the. force. of its language. .If from the force of a desired to eliJ;ninate,ki).pwD .defects, or to limit the covenant in anyway, it is easy tOSRy so. Heneral in its language it reaches tp all defectawiihin its terms,){nOwn::9r unknown· .Again, it is ilnsisted that the covenant relied on is' void because the covenant of a married woman. ''fhe property conveyed was a part of her in equity.. I dQ,not know that I can add anything tb ",hat has beensd wellsaidot;l this. subject in the opinion heretofore filed. The inv»lidityof covenanta affirmed in section 669 of the Missouri Revised Statutes refers by the terms of the section' to covenants in a joint, deed by husband and wife, (If. her statutory estate. By no reasonable, or propet:grammaticalconsf.ruction can the words "such deed," in the last clause of the section, refer to other than the joint deed named in the first clause. The deed ,here was no such joint deed. It was the separate deed of"the wife and herttustee, conveyingalbt belonging to ner'sapanl.'ee'estate in equity. That she had power to make such a conveyance without her husband, and 'that she can make any contract with rl'lspect to separate estate as freeIyas a feme 8ole, must now be conas settled 'by the decision of the supreme court in v. Shaw, 96, Moi 22, 8 S,' 'W.' Rep. 897. This is the declaration of that court uporHhe question: ' "But it may be urged that this deed waa utterly invali9., because it was exeeuted by the wife ·. However thisJ'nay be.l1s to mere statutory estates. which require a johlder of husband andwite in order to their valid exeeu-
, BARI,OW '11. DELANEY.
:99
tion, it willnptholdas to separate estates in equity, which 'the wife may or convey without let or hindrance from her, huspand. With regard to such propertyshe is, in equity, a femesole,and ,bas the ju,s disponendi; which is the inseparable incident o,f ownership. By virtue of this she chaIt'eBi she incumbers, or she absolutely disposes 0'1. it, or she binds it by ber parol agreements, just as any other owner would. This position is sustained. by abundant authority, both here and elsewhere. LiVingston v. Li'l)in.qston,2 Johns. Ch. 537; Whitesides v. Oannon, 23 Mo. 457; King v. Mittalberger, 50 Mo. 182; McQuie v. Peay, 58 Mo. 56; Claflin v. Van Wag. oner, 32 Mo. 252; Bchaf1'oth v, Ambs, 46 Mo. 114; Kimm v. Weippert, Id. 532; Lincolnv. Rowe, 51 Mo. 571; De Baun v. Van Wagoner, 56 Mo. 347; Gay v. Ihm, 69 Mo. 584; 1 Bish. Mar. Wom. § 853; 2 Bisb. Mar. Wom. § 163; Taylorv. Meads, 34 Law J. Ch. 203." Again, it is insisted that the covenant was void because commencing by disseisin, and made for the purpose of giving effect to that disseisin. There is much curious and intricate learning in the old common lawrespecting real estate, much of which is without force or significance under the changed rules of to-day respecting real estate and its modes of COllveyance. This old doctrine ofthe in validity of warranties C0111111 cncing by disseisin had reference principally to the matter of estoppel, aud its ef· fect upon the title; while the,modern covenant is not so much for the purpose of establishing title as for protection in case of failure or defect thereof. But fUlther, by section 7, c. 108, of the Revision of 1865, it was provided that"Section 7. Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who shall have made auy covenant or agreement [sball be answerable upon such covenant or agree· ment] to the extent of the lands descended or devised to in the cases and in the manner prescribed by law." This seems to affirm the validity of a covenant such as this at least, made by one rightfully in possession and owning a limited estate. Indeed, I think it would be rarely found that any of the ordinary covenants in a deed made to-day by one sui juria,would be declared void on account of a9Y of the old technical rules of the common law respecting warranties and covenants. ' Again, it is insisted that, even if the covenant were valid, it would not extend to the defendants' title. Mrs. Boyce had a life-estate, her children the remainder. These estates were created by the will of Ann Biddle, the same instrument creating both estates; and it is urged that it would be an absurdity to say that she warranted against the very instrument under which she herself derived title. The covenant was as follows: .. And the said parties of the first part. O. Boyce and Julius S. Walsh, hereby covenant for themselves, their successors, heirs, ... ... ... to warrant and defend the said real estate unto him, the said party of the second part, and his heirs and assigns, forever, against themselves. the said patties of the first part, ... ... ... and all acts done or suffered by themselves, the said parties of the first"part, or JO,hn Mullanphy, or Bryan Mullanphy,or Ann Biddle, from wpomthe said Octavia Hoyce derives title."
,
100
I'EDERAL REPoRTER,
vol. 40.
The meaning of that is She warranted against any act done or suffered by herself. Would it be for a moment thought that that covenant was not' broken by the execution of a prior deed by her, and, if that were true as to herself, would' it not be equally true a. to any conveyance (and the will.in this respect is nothing more than a conveyance) made by Ann Biddle or either of the other parties specially mentioned in the warranty? Obviously the covenant was an assurance that no act or deed ilr omission of either of the parties specially named limited or impaired the full title which she was purporting to convey. No other meaning can be given to this'language. Further, it is urged that, if this covenant be regarded as valid, all right of action thereon was barred before the commencement Of this suit; that the covenant was broken, if not before, at least at the time of the death of Mrs. Boyce, which took place more than 10 years before the filing of this bill. But the law of Missouri, like the law seems to be that such a covenant (a covenant to warrant and defend) is broken only by eviction, or what is equivalent thereto. Rawle, Cov. 360; Rev. St. § 3229; White v. Stevens, 13 Mo. App. 241. Again, the decision in Barlow v. Delaney, reported in 86 Mo., supra, being between the same parties, and growing out ofthe same transaction, is specially relied upon by defendants as res adjudicata. But the two cases are essentially different. In. the case in the state court Mr. Barlow sought to enjoin these defendants from asserting their title as remainderin the covenant made by their men, while here he is suing for a. mother. In that case the point of the decision was that, as they took title, 110t from their mother, but from Mrs. Biddle, no covenant that she <lould make wou,ld estop them from asserting tWe,-in other words, that she could not convey away by her deed, with any covenants, property which,her chilqren obtained from a third party, while here complain'f!.nts are seekillg to subject a ,portion of the separate estate in equity of Mrs. Boyce to the payment of damages they have sustained by.abreach 'of her covenan,t. The two cases. are essentially different in their nature ,and the relief sought, and the fact that thAre are some matters kindred to both , and some expressions of opinion thereon in the various opinions filed in that case as it went through ,the state on matters which we are forced to consider here, does not make the decision there conclusive here. ' I think a cause of action exists, and that, it is not barred by the statute of limitations, or by any prior adjudications. Coming now to the measure of damages, the general rule in cases of this kind is the purchase price and interest. But the special facts in this case make another rule' the correct one. The defendants were the parties asserting title paramount, and threatening eviction. To prevent that, the party in possession, holding under Barlow, purchased such title paramount. ';rhe necessity of such a purchase to prevent eviction is conceded. The 8Il}()Unt paid was "reasonable; but, whether reasonable or. not, it was the amount these defendants exacted. , It does not lie with them to say that it was unreasonable. Mr. Barlow, by the terms of his warranty, was bound to protect the parties in possession; and when they
UNITED STATES
f).
DELAWARE, L. &: W. B. 00.
101
were compelled to buy in a title paramount he was bound to reimburse them for the amount paid therefor. The action of the parties all around, therefore, fixes the amount which complainants ought to recover. It is the amount paid by Mr. Barlow, with interest. And as defendants confessedly have in their possession of the property belonging to the separate estate in equity of Mrs. Boyce, which descended to them, far more in value than the amount thus paid, a decree must be entered that a lien be allowed against the same for the damages sustained. It is admitted that one of the heirs has already paid her share, so that the decree will only be pro rata as to the rest. One question further remains. Mr. Barlow did not pay the parties in possession who had bought the paramount title of defendants without suit. He defenden, and now claims that the costs and counsel fees of that litigation are also a part of his damages. It is unnecessary to g(} into the vexed question as to what costs and counsel fees can in an nary case be recovered. These defendants were not notified and called upon to make good their mother's covenant, although they had knowl.. edge of the pendency of the suit in New York against Mr. Barlow. But the truth is, Mr. Barlow's defense was on his own account, for his own benefit. Under the views of law then entertained it was not believed that he had any. right to recover against these defendants, so that his defense was only in his own interest, and with the hope of avoiding liability. It was not a defense for their benefit, or at their instance; and, as he chose to carryon that litigation, he must bear the costs of it; Nothing was gained by it as against them. They could not question the rightfulness of the payment to them by the party in possession, or the reasonableness of the amount paid; and the litigation in New York did not strengthen, as against them, either one of these matters, ()r fi:lC the amount of their liability to Mr. Barlow. I think, therefore, the counsel fees and costs are not recoverable. I believe this covers every matter that requires notice.
ex rel.
MORRIS
et al. New
'11. DELAWARE,
L. & W. R. Co.
(CirCUit Court, N. D. L
York.
October 18, 1889.)
INTERTSATE COMMERCE ACT-UNJUST DISCRIMINATION-USB OF A PARTICULAR LIVIlSTOCK CAR.
To an application for a mandamus to compel a carrier to transport relators' stock in the cars of a certain live-stock transportation company, the respondent set fortb that it had entered into a contract with anotber transportation company, by Which that company was to furnish respondent a certain number of cars per year; that such cars were available to all shippers of stock; that they were much more useful to defendant than other live-stock cars, in that they could be converted into coal. cars when not used for live-stock; and that defendant paid mileage for the use of the cars. Held. that the refusal to transport relators' stock in the cars offered at the same rates charged for stock in the other cars was not an "unjust discrimination" in favor of the transportation company, whose cars respondent was using, within the meaIling of the interstate commerce lIoCt, as the circumstances and con· ditions were not'Bubstantially similar.
lot .. PENPENTE LITB. ". .
vol. 40. .·
, 'tile ''interstate commerce actauthoriies the court, in Its dlsoretlon; 'to grant a
mwmdamu8, when any question of fact as to the proper compensation of the car!rier israiaed, "notwithstanding such',ql;iestion of fact is undetermined" pending 'the determination of such question. Held, that this does not autb'orize the court to relief where a case of unjust discrimination is not made out.
In Equity. Application for m<1Jnda?nUB. On demurrer to return. J. a. (,'layton, for relators. RogfJ)'i$, Locke Milburn, for respondent·
«
·
WALLACE, J. The jurisdiction invoked by the relators is founded on that section of the "Act to regUlate interstate commerce," as amended March 2, 1889, which authorizes the court to issue a writ of mandamu8 upon the relation of any person alleging the violation by a common carrier of any of the provisions of the act which prevent the relator from having interstate traffic moved by the carrier "at the same rates as are tlharged, or upon terms or conditions as favorable as those given. by said Qarrier for like traffic under similareonditions to any other shipper." The unjust discrimination alleged in the petition upon which the alterto transnative writ was granted ,consists in the refusal of the port cattle for Morris, a shipper of cattle, in cars of a special construction belonging to the American Live-Stock Transportatipn Company, superior, by reason of their improvements, to ordinary cattle-cars; whereas, it transports cattle for other shippers in cars having some, but not all, of such· improvements, belonging to the Lackawanna Live..Stock Express Company. 'IheAmerican Live-Stock Transportation Company, the corelator with Morris, is a corporation organized for the purpose of transporting live-stock and other merchandise, and its presence would seem to be superfluous, unless it is here to obtain the benefit of an adjudication that the respondent is bound. to accept its cars, whenever tendered with cattle for transportation, and allow to it the of threefourths of a cent per mile for the use of the cars which the relators aver is allow.ed by the respondent to the Lackawanna Live-Stock Express Company. The return by the respondent to the alternative writ, besides denying in general terms the charge of unjust discrimination, sets forth that it has entered into a contract with the Lackawanna Live-Stock Express Company for the term of five years, by which that company agrees to furnish at least 200 of its improved e.tock-cars to run on the railway of the respondent; that such ellrs are not used exclusively by any one shipper of live-r;:tock, but are available to all shippers; that the cars, unlike those of the American Live-Stock Transportation Company, are so constructed as to permit of the carriage of coal, which is the principal busi:ness of the respondent, not loaded with live-l3tock; and that in consideration of the special contract the defendant agreed to use the cars upon itsrpad, and pay mileage therefor, as if such cars were furnished by a 'connecting company; and it also alleges that, after entering into such agreement, the respondent and several other trunk line railroad compalliesentered into an agreement to discontinue hauling private stock-cars, (jxcept for horses, for reasons which are particularly set forth. The re-