Jones v. Haseltine , 1907 Mo. App. LEXIS 266 ( 1907 )

BLAND, P. J.

(after stating the facts.) — There is no direct evidence that defendants received any consideration for the lot from either Burgess or plaintiff. Only a conjecture can be formed from plaintiff’s evidence, that defendants made a deed in consideration of a surrender to them of the Burgess bond and the cancellation of his note. But the deed imports a consideration, and if there was a breach of the covenant of seizin, plaintiff was entitled to at least nominal damages. In Allen v. Kennedy, 91 Mo. 1. c. 329, 2 S. W. 142, it is said:

“As the covenant of seizin of an indefeasible estate in fee simple, the claim is, that this covenant if broken at all, is always broken when made, and does not run with the land. Whatever may be the rule elsewhere, with us, it is more than a covenant in the present tense. It is rather a covenant of indemnity, and it has often been held that it runs with the land to the extent that if a covenantee takes an estate, however defeasible, or if possession accompanies the deed, though no title pass, yet, in either event, this covenant runs with the land and inures to the subsequent grantee, upon whom the loss falls.”

The legal title to an undivided interest in the land was in the trustee, Brewer, at the time defendants made the deed to plaintiff, and hence the covenant of seizin was broken at the moment of the execution and delivery of the deed. [Cockrell v. Proctor, 65 Mo. 41.] Defendants contend that an eviction was essential to entitle plaintiff to sue for a breach of the covenant of seizin. In Dickson v. Desire’s Adm., 23 Mo. 151, and Cockrell v. Proctor, supra., it was held that an eviction is not necessary to constitute a breach of the covenant of seizin, that it is sufficient if some damage result from an outstanding paramount title. The covenant of seizin, being a continuing one running with the land, the Statute of Limitations did not run in favor of defendants as covenantors until plaintiff, the covenantee suffered actual loss. [Walker v. Deaver, 79 Mo. 664; Priest v. Deaver, 22 Mo. App. 276.] In any view of the case, we think plaintiff is entitled to recover at least nominal damages, and reverse the judgment and remand the cause. Goode, J., not sitting.