Connor v. Eddy , 25 Mo. 72 ( 1857 )

Scott, Judge,

delivered the opinion of the court.

This case stands for revision here on the finding alone. No failure of title in the vendors is shown by the finding, and it is exprqssly stated that there was no fraud in the defendants in making the sale. Where is the ground then for a rescission of the contract, or for an injunction to restrain the collection of the purchase money ? The facts as found do not bring the case within the influence of the act to regulate injunctions in certain cases. (R. C. 1845, p. 582.) It must stand then on the general principle that a purchaser of land, who has taken a conveyance with covenants for title and is in undisturbed possession, will not be relieved against the payment of the purchase money on the mere ground of defect of title, there being no fraud in the sale nor any eviction. (Abbot v. Allen, 2 Johns. Ch. 519.) Nor is there any allegation of the insolvency of the vendors or of any equitable circumstance, which, according to the case of’Jones v. Stanton, 11 Mo. 433, might induce a departure from the general principle.

The plaintiff, having given a deed of trust on the lot with covenants for title to secure the purchase money to the vendors, is not' estopped by his covenants from availing himself of any relief to which he would otherwise be entitled by virtue of the vendor’s covenants to himself. This is the law with regard to mortgages with warranty of title given to secure the purchase money of the land mortgaged, and it is as applicable, if not more so, to deeds of trust for the same purpose. The law of estoppel has no application in such cases. (Rawle on Qov. 348.)

Judge Ryland concurrring,

the judgment will be affirmed;

Judge Leonard absent.