Barnhart v. Hughes , 46 Mo. App. 318 ( 1891 )

Ellison, J.

This is an action to recover upon a breach of covenants against incumbrances. On January 6, 1887, defendant Hughes conveyed the property in controversy, by warranty deed, to defendant Singleton, with the covenant that “he is lawfully seized of an indefeasible estate in fee, in the premises herein conveyed ; that he has good fight to convey the same ; that the said premises are free and clear of any incumbrance done or suffered by him or those under whom he claims ; and that the said Julius C. Hughes will warrant and defend the title to the said premises unto the said parties-of the second part and unto their heirs and assigns against the lawful claims and demands of all persons-whomsoever,” except as to certain specified matters not in controversy here. On May 23,1887, defendant Singleton conveyed the said property to William R. Barnhart by warranty deed, with the same covenants above set out. On May 16, 1888, said William R. Barnhart conveyed the same property to this plaintiff, with the same-covenants. On April 13,1886, ordinance 33000, to open, widen and establish Woodland avenue, in Kansas City, was duly passed and approved. The lots in controversy were within the benefit district, prescribed by said ordinance. On January 4, 1890, the plaintiff was compelled to pay off this judgment in order to prevent an execution sale of the property in controversy. The lien of the assessment of benefits, and of the judgment rendered thereunder, attached as of the date of approval of the ordinance for the opening of the street. Charter, City of Kansas, art. 7, sec. 5. The actual work of opening and widening the street was done while the lot was owned by the plaintiff. The case was tried by the court-sitting as a jury. Judgment was rendered for plaintiff' for nominal damages, from which plaintiff appeals, contending that he is entitled to recover the full amount of judgment and interest paid by him to extinguish the judgment lien.

There is no dispute as to the foregoing facts, and from them we have no doubt of plaintiff’s right to-recover, not merely nominal, but substantial, damages for a breach of the covenant. It appears conceded, and so the trial judge must have decided, by allowing nominal damages, that the passage of the ordinance created an incumbrance on the property. That the covenant against' incumbrances, though technically broken when made, will, nevertheless, run with the land till a substantial breach occurs, was decided, upon full consideration, in Winningham v. Pennock, 36 Mo. App. 688. We there «aid that a covenant against ■ a incumbrance of like character to the one now in question “will run with the land and remain alive in the hands of a subsequent grantee who may be compelled to remove the incumbrance ; for, then, the substantial breach occurs, and a substantial recovery may be had.” That case ought to really control this; but it is urged in this case that the improvement out of which the assessment on this property grew was made after the plaintiff became the owner, and that the “benefits” (which are the foundation of the assessment) accrued to this plaintiff, and, therefore, he ought not to recover. We cannot accede to this. The liability for which the lien is given by the charter of Kansas City is the incumbrance, and this dates from the passage of the ordinance. Blackie v. Hudson, 117 Mass. 181; Cadmus v. Fagan, 47 N. J. L. 549 ; Elliott on Roads & Streets, 555.

The amount of this liability is ascertained after-wards, but it is covered by the covenant, whatever it may be. It relates back as of the date of the ordinance. It is a settled question in this state that the mere assessment for taxes constitutes an incumbrance for which the covenantor must answer to the covenantee, who pays them, .although the amount of the tax was not ascertained until, perhaps, a year afterwards ; the covenantee in the meantime having had and enjoyed the property. So the argument advanced by plaintiff would apply equally .as well if this was a sewer tax, levied upon a sewer district, instead of á benefit assessment. In such case the incumbrance would exist, and liability would attach to the covenantor, notwithstanding the sewer improvement was put in after the covenantee became the owner.

It was said at the argument that the passage of the •ordinance was not the consummation of the tax, and that in a variety of ways it might never ■ be consummated. This, we can readily grant for present purposes; but, at the same time, it will be admitted that, at least,, it probably will be carried out, and, for this very reason, the covenantee takes the covenant against it. These-matters, we may well assume, are in the minds of the-parties when they agree upon a price and determine upon the kind of conveyance.

As the plaintiff paid $293.90 in discharge of theincumbrance, we will reverse the judgment, and remand the cause, that he may have judgment entered for that sum and interest.

All concur.