Pence v. Gabbert , 63 Mo. App. 302 ( 1895 )

Ellison, J.

This action is based on a petition for breach of covenants of warranty, contained in a deed to certain real estate in Platte county. Judgment was rendered for plaintiff for $1,656.05, which was the consideration paid for the land, including court costs, attorney’s fee, etc., paid by this plaintiff in defense of an action of ejectment. The cause was submitted to the court on the following agreed statement of facts:

“* ® * It is agreed by the parties hereto that on the first day of March, 1888, the defendant’s intestate, George Gabbert, made and executed to the plaintiff a general warranty deed to and for the property mentioned in the petition, in which said deed the consideration paid for the entire tract of land is $2,400; that immediately upon the execution of said deed, which was also signed and acknowledged by the wife of said George Gabbert, the plaintiff went into the exclusive possession of all of said property and has remained in the exclusive possession thereof from that day up to the seventh day of May, 1894, under the said deed from George Gabbert, since which said, date plaintiff has been in the exclusive possession of all of said land, refusing to allow Ann E. Throckmorton to take possession of any part of said land, but admitting that she has an undivided half interest therein.

“That on the sixteenth day of'August, 1890, said Ann E. Throckmorton instituted suit in ejectment against the plaintiff herein for the possession of said land, and upon a trial of said cause recovered judgment for an undivided one half thereof, together with the rents and damages from the sixteenth day of August, 1890, up to the seventh day of May, 1894, which rents and damages plaintiff has paid; that, prior to the trial of said ejectment suit, the defendant’s intestate was notified by plaintiff of the pendency of said suit, and also that he should defend the title thereto, and the said G-eorge G-abbert, in pursuance of said notice, did defend the title to said property in said suit. * * * Said case was appealed to the supreme court and in which said court a decree was made, directing the circuit court of Platte county, Missouri, to enter a judgment for the plaintiff therein, Ann E. Throckmorton, for the undivided one half of said land, which judgment was entered by said last named court, as' hereinbefore recited. * * * ”

Our opinion is that the trial court erred in rendering judgment for plaintiff for more than nominal damages. It will be observed that, while the intestate’s title to one half the land failed and plaintiff therefore only got a title to one half of the land which the deceased attempted to convey to him, yet plaintiff is still in the undisturbed possession of the whole tract and refuses to allow Mrs. Throckmorton, to take or have possession of any part thereof, though admitting that she had paramount title to one half thereof. If, therefore, the plaintiff is permitted to recover the consideration money for this one half of the land, and yet retain the possession and occupancy thereof, he will have both land and money, receiving from the former the profits thereof.

The rule is that there must be an actual eviction, or something which is equivalent thereto, before substantial damages can be sustained on account of a paramount title; for, while the mere existence of the paramount title is a breach of the covenant, for which nominal damages can be allowed, yet before substantial damages can be allowed, there must be an actual loss of the land, the title to which was warranted. Collier v. Gamble, 10 Mo. 473; Cockrell v. Procter, 65 Mo. 46; Holladay v. Menifee, 30 Mo. App. 207; Tracy v. Greffett, 54 Mo. App. 562.

It is contended by plaintiff that the existence of the judgment in ejectment in favor of Mrs. Throckmorton, together with plaintiff’s admission that she has title to one half the land, is sufficient to entitle him to a substantial recovery, notwithstanding he has not been evicted. Such contention is not the law. Eor he may never be disturbed in his exclusive possession. He may hold adversely to Mrs. Throckmorton and thereby acquire the title by reason of a possession which his grantor gave him. He can not refuse to surrender the possession given him by the warrantor and at the same time recover the purchase money for the land. It is readily conceded that it is not necessary that he should show an actual eviction, but it must be something equivalent thereto. But, instead of this he shows here, in effect, a refusal to be evicted, since he refuses to let in the party who has the paramount title.

Plaintiff undertakes to make a distinction between this case and others where satisfaction of the judgment asserting paramount title is required, by showing that in this case plaintiff and Mrs. Throckmorton each owning an undivided half of the premises, thereby being tenants in common, plaintiff can not be dispossessed, since each hast a right to the possession of every part. This contention is unsound. While plaintiff can not be expected to surrender to Mrs. Throckmorton the exclusive possession, he can very well surrender to her the right to possess and occupy with him, in accordance with her title. Plaintiff has not been asked to surrender the exclusive possession to the whole tract — he has only been proceeded against for the one half, and this he refuses to permit the paramount owner to enjoy.

Several of the authorities cited by plaintiff to sustain his position that an eviction is unnecessary, are against it, while the others concern cases unlike this. In Cummins v. Kennedy, 3 Litt. 118, the grantee never received possession; he found adverse claimants in possession and he was defeated by their better title, when he sought to eject them. In such case the court very' properly held that he had the same right of action against the grantor, as though he had been evicted. His being prevented from entering by title paramount, was practically the same, thing as if he had entered and been evicted by title paramount.

So in Cowdrey v. Coit, 44 N. Y. 382, an eviction by force was held unnecessary where the grantee purchased the land under the foreclosure of a prior mortgage and sold his bid to a third party, the latter receiving a deed from the officer making the sale and then the grantee surrendering it to him. For there is a surrender of possession to the holder of the paramount title. Again, in 'the case of King v. Kerr, 5 Ohio, 155, actual eviction was held unnecessary where a judgment in ejectment was obtained against the grantee and he, claiming the benefit of the “occupying claimant” law, settled the case under that law. The distinction between cases of the class to which the foregoing belong and the case at bar is apparent.

We will reverse the judgment and remand the cause, with directions to the circuit court- to enter judgment for ,plaintiff for nominal damages.

All concur.