페이지 이미지

tion, cites Henry Bill Pub. Co. v. Durgin, 101, foreign state, rendered the contract imposMich. 458, 59 N. W. 812; Arbuckle Bros. v. sible of lawful performance. Appellant conKirkpatrick, 98 Tenn. 221, 39 S. W. 3, 36 L. ducted the business for a period of about two R. A. 285, 60 Am. St. Rep. 854; Conn v. months. This, perhaps, could be lawfully Chambers, 123 App. Div. 298, 107 N. Y. Supp. done (see South Carolina Code 1902, vol. 1, 976; Snelling v. Arbuckle Bros., 104 Ga. 362, chapter 44, p. 680 et seq.); but we need not 30 S. E. 863; Arbuckle Bros. v. Gates, 95 so decide. In any event, it was unlawful for Va. 802, 30 S. E. 496; Standard Fashion Co. appellant to continue to conduct the business v. Cummings (Mich.) 153 N. W. 814. But up- beyond a period of 60 days; and the corpoon the facts involved in each of those cases ration, having thus rendered the contract imthe conclusions reached therein afford no per- possible of performance, became liable as for suasive authority for the said contention of a breach thereof. And we think that appelcounsel.

lant was thereupon entitled to tender back [5] We have reached the conclusion above the goods and recover, as damages for the expressed from a consideration of the provi- breach, his $1,000, salary earned, and exsions of the contract alone. But if the con- penses. tract can be said to be ambiguous, by reason [10] But it is argued that appellant is not of its apparently contradictory provisions, proceeding on the contract, and is not entirendering obscure the true intent and pur- tled to recover on the theory that the corpopose thereof, then the contemporaneous acts ration was guilty of a breach thereof in the and declarations of the parties-defendant's manner mentioned. The appellant filed with advertisement and the correspondence lead- the referee a “claim,” verified by oath, to ing up to the contract-may be looked to to which was attached a copy of the second resolve such ambiguity. Laclede Construccount of the petition filed in the original suit. tion Co. v. Moss Tie Co., 185 Mo. 23, 84 S. The latter, inter alia, avers that the conW. 76. And, if necessary to resort to evi-tract, by defendant's alleged acts, became "imdence aliunde to explain the contract, this possible to perform, inoperative, and void.” rule is in no wise affected by the declaration The claim itself states that the demand is in the contract itself that it embodies all based on the contract filed with the original prior negotiations, etc. This is nothing petition as an exhibit. The ordinary rules more than that which the law presunies as to of pleading do not apply with strictness to all written contracts that are definite and such proceedings as these. And we see no clear; but it does not prevent resort to ex- objection to granting appellant the relief to trinsic evidence of the proper sort, where by which he appears to be entitled. such means alone doubt may be removed as tract, strictly speaking, was not void. It to the meaning of terms employed in the could have been performed, had the compawriting.

ny taken the requisite steps in the premises ; The company advertised for a man to man- but by its own act it rendered it impossible age a “branch wholesale business,” and wrote for appellant to lawfully perform his part appellant that it was its intention to open thereof, whereby it became liable as upon a a branch business from which to distribute breach of its undertaking. its goods, using the office in South Carolina There is no evidence in the record in proof as a "distributing depot" for that territory. of the amount, if any, of the expenses claimIt further wrote appellant that the latter's ed to have been incurred by appellant in $1,000 would be “perfectly secure,” being “al- undertaking to perform the contract. The ways represented either by merchandise on judgment will accordingly be reversed, and hand or cash for the same," and would be the cause remanded, with directions to the returned to appellant upon his return of circuit court to order the allowance of apgoods on hand. We think the writing, consid- pellant's claim for $1,300. ered alone, is susceptible of but one rational It is so ordered. interpretation. However, any doubt that may

NORTONI, J., concurs. REYNOLDS, P. come from the use of certain terms em

J., not sitting. ployed therein is readily dispelled when the contract is read in the light of the acts and declarations of the company leading up to EAKER V. HARVEY. (No. 14081.) its execution.

(St. Louis Court of Appeals. Missouri. Nov. 2, [6-9] It is true that the company's subse- 1915. Rehearing Denied Nov. 23, 1915.) quent failure to comply with the laws of 1. GUARDIAN AND WARD Cm77 SALE OF South Carolina did not render the contract PROPERTY-POWER OF COURT. void ab initio. It was competent for the Probate courts have no power to authorize company to contract in this state with an wards, except for their education, support, and

the sale or incumbrance of the property of minor agent looking to the transaction of business maintenance or investment, so that a deed of in the state of South Carolina. Hogan v. trust from the guardian and curator of minors City of St. Louis, 176 Mo. 149, 75 S. W. 604. to secure a fee of an attorney engaged in liti

gation involving their property was void. But the company, by its own act in failing

[Ed. Note.-For other cases, see Guardian and to seasonably comply with the laws of the Ward, Cent. Dig. $$ 87–90; Dec. Dig. Om77.]

[ocr errors]
[ocr errors]
[ocr errors]

2. ESTOPPEL Omw 38-AFTER-ACQUIRED PROP- R. P. & C. B. Williams, of St. Louis, for ERTY-BREACH OF COVENANT.

appellant. Felix Cornitius and Grant & Defendant, in an action for damages for breach of covenants of title contained in his Grant, all of St. Louis, for respondent. general warranty deed, who had acquired title by enforcement of a void deed of trust executed

REYNOLDS, P. J. Respondent, plaintiff to him by the guardian of certain infant heirs, who afterwards demanded possession of plain" below, brought her action against the defendtiff and to whom he surrendered possession, ant, now appellant, to recover damages for was estopped to deny that such heirs were the breach of covenants of warranty of title to holders of the paramount title, in the absence of evidence tending to show a valid conveyance a certain lot in Malden, Dunklin county, this by such parties of their title since the date of state, known as the east half of outlot numthe deed under which he claimed title.

ber 20, in that city, conveyed to her and her [Ed. Note.- For other cases, see Estoppel, husband by defendant by a general warranty Cent. Dig. 88 99-107; Dec. Dig. Om38.]

deed. Averring that her husband had since 3. NAMES Om14-IDENTITY OF PERSON.

died and that the title had vested in plainIdentity of name, in the absence of proof tiff, she avers that she had entered into posto the contrary, is identity of person.

session of the premises, and in June, 1907, [Ed. Note. For other cases, see Names, Cent. had relinquished possession thereof to cer

[ Dig. g 10; Dec. Dig. Om 14.]

tain parties, here, for brevity, designated as 4. COVENANTS 121-JUDGMENT - CONCLU

"the Haynes heirs,” they claiming by an SIVENESS-EJECTMENT.

A juugment in ejectment against the terre older and better title and on which, on April tenant, when the covenantor in the deed is 1st, 1905, they had brought an action in made party to the suit, is to be received in evi- ejectment against this plaintiff to recover dence as concluding the question of paramount possession of the lot, of which action defendtitle.

[Ed. Note.-For other cases, see Covenants, ant here had due notice and opportunity to Cent. Dig. 88 221–223; Dec, Dig. Om 121.] defend and did in fact enter his appearance 5. COVENANTS 101 - BREACH Omw


for the purpose of defending, but had failed DER TO PARAMOUNT TITLE.

and neglected to make any defense therein; A covenantee whose title has failed, though that the Haynes heirs, having a better title there has been no judgment in ejectment against to the premises, thereupon lawfully entered him, may recover of the covenantor for breach by showing a surrender to a paramount title. into the possession thereof; that on Janu

[Ed. Note.-For other cases, see Covenants ary 10th, 1903, and ever since that time these Cent. Dig. $$ 147, 156; Dec. Dig. Om 101.) parties had and have continued to have the 6. COVENANTS 101 ACTION FOR BREACH

lawful right to the premises by an elder and OF COVENANT OUSTER BY PARAMOUNT better title; that the costs in the action TITLE-JUDGMENT.

amounted to $14, which plaintiff has been A grantee under a general warranty deed of compelled to pay and that by reason of the a lot which defendant, the grantor, had acquired by foreclosure of a deed of trust, executed by premises plaintiff has been damaged in the the guardian of certain infant heirs under or- sum of $400, for which she prays judgment. der of the Probate Court but void because be- The answer, after a general denial, pleads yond the power of the court, against whom the the three-year and five-year statute of limitaminor heirs afterwards made demand of possession and obtained a judgment in ejectment de tions. fended by the defendant herein, and who upon The fact of filing the action in ejectment the sheriff's writ of execution or restitution by the Haynes heirs against the plaintiff, as turned over their possession to him, without notice from the defendant of any error in the form alleged, was in evidence, the petition describof judgment, showed an ouster of her possession ing the lot and asking for possession and of the property by paramount title, and could damages. It was in evidence that defendant not be held to have surrendered voluntarily; had been notified of the pendency of the acespecially in view of Rev. St. 1909, § 2082, providing that the Courts of Appeal shall not re- tion and had employed the counsel who converse unless for error materially affecting the ducted the defense therein in the name of merits of the action.

Mrs. Baker, and while it was conceded that [Ed. Note.- For other cases, see Covenants, judgment had been rendered against this Cent. Dig. $$ 147, 156; Dec. Dig. Om 101.]

plaintiff in that action, it appeared that the 7. EJECTMENT 122–JUDGMENT-ORDER OF judgment omitted any description of the RESTITUTION.

A judgment in an action of ejectment omit- premises. It is also in evidence that purting any description of the premises would not porting to act under an execution or writ of sustain an order of restitution for the lot in- restitution which was issued in the action of volved or for any lot, though it was not void and ejectment in favor of the plaintiffs therein might have been amended.

and against this plaintiff, the sheriff of the [Ed. Note.--For other cases, see Ejectment, county, some time in June, 1907, with the Cent. Dig. 88 419 430; Dec. Dig. Om 122.]

, execution or writ of restitution which had

been issued under that purported judgment, Appeal from St. Louis Circuit Court; had gone to this plaintiff and demanded posGeorge H. Shields, Judge.

session of the premises in behalf of the Action by Alice M. Eaker against Thomas Haynes heirs, plaintiffs in the ejectment, and B. Harvey. Judgment for plaintiff, and de- that thereupon plaintiff had surrendered the fendant appeals. Affirmed.

possession of it to him and that the Haynes

[ocr errors]

heirs had been in possession of it until they , a deed of trust" on the lot described. It was subsequently sold it to another party and under this order that the deed of trust was that plaintiff in this action had never been made by the guardian and curator of the in possession of it since June, 1907. It was Haynes heirs, and at a sale thereunder Haralso in evidence that the defendant herein, vey purchased. an attorney at law, had, in connection with It was also in evidence that after Mrs. another attorney, rendered services for the Eaker had been dispossessed or had surrenHaynes heirs and possibly their father, in dered possession of the premises, Mr. R. P. the United States Circuit Court, as it then Williams, who was the attorney associated was, for which a fee was due, and that to with Mr. Harvey in the suit in the United secure the payment of this fee the guardian States Court, and who, representing Mr. and curator of the Haynes heirs, who were Harvey, had employed the firm of attorneys then minors, had, under the purported au- who defended the action of ejectment, went thority of the probate court of Dunklin coun- to the county seat of Dunklin county and exty, made a note for $300 in favor of Mr. amined the record and files in the ejectment Harvey, the defendant here, and to secure it, action and then discovered the form of the had executed a deed of trust upon the lot in judgment which had been rendered in that question; that note not being paid when action, and returning to St. Louis advised due, the trustee, acting under the provisions Mr. Harvey that in his opinion that judgof the deed of trust, had sold the lot and ment was void. defendant purchased it, the trustee executing

This is practically all the material evidence a deed to him, and that Mr. Harvey had in the case. thereupon conveyed the lot described to plain

At the conclusion of the trial, which was tiff and her husband by a statutory general before the court, a jury having been waived, warranty deed, of date January 10th, 1903, the court, at the instance of plaintiff, gave in consideration of $400.

three declarations of law. The records of the probate court authoriz

It also gave three declarations of law at ing the guardian and curator of the Haynes the instance of the defendant. heirs to make the note and deed of trust We do not think it necessary to set out any were in evidence.

of these here, but shall hereafter set out the It is recited by the guardian and curator substance of the third declaration given at in the petition on which the above order was the instance of plaintiff, upon which defendmade by the probate court, that there was ant particularly assigns error. pending in the United States Circuit Court

Defendant also asked a declaration of law an action in attachment against all the real to the effect that if the court, sitting as a estate of the minors, seeking to subject it to jury, found from the evidence that at the alleged indebtedness of their father; that time plaintiff delivered possession of the propunless that action was properly defended the erty described in the deed from defendant property of the minors would be sacrificed ;

to plaintiff and her husband, to the Haynes that Thomas B. Harvey, an attorney, had heirs, that the Haynes heirs were not the been retained to defend the litigation and the owners of a superior or paramount title, the fee agreed to be paid him was $300; that plaintiff cannot recover. this attorney demanded that the payment of clare as a matter of law that under the evi

Defendant further asked the court to dethis fee be secured by deed of trust upon dence in the case, the verdict and judgment the east half of out-lot number 20 in the city should be for defendant. These were refused. of Malden; that the curator believed and is advised that the interests of the minors fusal of these declarations and to the giving

Defendant objected and excepted to the re(Haynes heirs) require that such deed of of those asked by plaintiff. trust be executed and he prayed for an or

The court found for plaintiff and entered der of court authorizing and empowering him up a judgment in her favor in the sum of to execute a note in the sum of $300, paya- $400, with interest from January 3rd, 1903, ble to the order of Harvey, due twelve amounting to $238.40, an aggregate of $638.40. months after date and for an order empower- From this the defendant, his motion for a ing him to execute and deliver to Harvey a new trial overruled, duly appealed. deed of trust on the lot securing payment

Learned counsel for appellant assign four thereof. Afterwards alleging that a mistake grounds why this judgment should be rehad been made as to the amount of the fee, versed and judgment be here entered for dethe guardian and curator asked that he be fendant. empowered to make an additional note for

First, that this being a suit for breach of $200. No order appears to have been made covenant of warranty and plaintiff having on this application for power to make a sec- been put in possession by defendant, she ond note, and, as said, the deed of trust se- could not voluntarily yield up the possescures only a $300 note. The probate courtsion to the detriment of the defendant withthereupon made an order authorizing the out legal claim or demand therefor. guardian and curator "to borrow the sum of Second, the judgment in the action in $300 for the purpose of carrying on the liti- ejectment being void, no right of any charachimself, who had made the demand of posses- The cases referred to in the Cutter Case sion of plaintiff, was a trespasser if he atas settling this in our state are Macklot v. the time had an execution or writ of resti- Dubreuil, 9 Mo. 477, 43 Am. Dec. 550; Joecktution upon the void judgment.

el v. Easton, 11 Mo. 118, 47 Am. Dec. 142; Third, that it devolved upon plaintiff to Landes et al. v. Perkins, 12 Mo. 238; and show an ouster for possession of the proper- Blair v. Smith, 16 Mo. 273. In every one of ty turned over to her by defendant; that these, as well as in Cutter v. Waddingham, this is a prerequisite for the right to sue supra, the vendee either relied upon adfor breach of the covenant of warranty un- verse possession, or showed a title superiless the owner and holder of paramount ti- or to that of his vendor. That did not octle has made demand for possession of the cur here. This defendant showed no outproperty. In such case proof of ownership standing title to defeat that of his grantors. at the time of the party to whom possession That those grantors were the same persons was delivered is incumbent upon the grantee. to whom the plaintiff here, through the sher

Fourth, that defendant is not estopped to iff, surrendered possession, is not disputed: deny the title of parties who executed the they were the Haynes heirs. Identity of deed of trust to him after sale and purchase name, in the absence of proof to the contrary, under the deed of trust, and that this being is identity of person. true there is a total failure of proof as to In Steele v. Culver, 158 Mo. 136, loc. cit. paramount title in the parties to whom the 138, 59 S. W. 67, it is said that possession was given; there is no proof that "It requires no citation of authority to show they ever had any title to the property; there that a man cannot question a title given by himis no proof that they have title to the prop- self or hold possession of the land in the face

of his own deed." erty to-day; there is no proof that they are the same parties who claimed the property 134 Mo. App. 74, loc. cit. 79, 114 S. W. 553,

In State Bank of West Union v. Keeney, at the time the deed of trust was executed. [1] We may remark, before considering 555, it is said quoting from Adams v. Wild

, these assignments, that it is rightly conceded es, 107 Mass. 123: that the deed of trust from the guardian in a third party, where the assertion of such

“A vendor is estopped from setting up title and curator of the Haynes children was ab- title is equivalent to the admission of the breach solutely void. The probate courts of our on his part of an implied warranty of title. state have no power to authorize the sale or vendee, he should not now be heard to say that

* * * In a contest between himself and his incumbrance of the property of minor wards he had no title at the date of the sale, although except for the education, support and main- at that date he asserted to his vendee that he tenance of the minor or for investment. So had a good title.” our Supreme Court held in Capen v. Garrison, We see no error in this third declaration. 193 Mo. 335, loc. cit. 348 et seq., 92 S. W. [4] A judgment in ejectment against the 368, 5 L. R. A. (N. S.) 838, and so our court terre tenant when the covenantor in the deed held in Leet v. Gratz, 92 Mo. App. 422, loc. is made party to the suit is to be received cit. 436, and following.

in evidence as concluding the question of [2, 3] Notwithstanding that, all the title paramount title. It is competent for that which the defendant here had to this lot, so purpose. far as appears, came through this deed, and [5] On the other hand, when no such judgthat title was that of the Haynes heirs, ment is given, the covenantee whose title nas acting or assuming to act through their failed may nevertheless recover for the guardian and curator. So they stood as breach from the covenantor by showing a grantors of defendant: he acquired all the ti- surrender to a paramount title. As we shall tle he had through a purchase at a sale un- hereafter see, we think that in this case there der the deed of trust made by the trustee. was enough shown to disclose that plaintiff With this fact in evidence the court at the in- surrendered to a paramount title and that stance of plaintiff gave the third declaration the judgment may be irregular is unimof law in which it declared that

portant. In other words, plaintiff's right "If the parties from whom defendant derived of recovery is sufficiently made to appear by title or claimed to derive title * * * are the showing that Harvey's title was derived same parties as those who demanded posses- from the Haynes heirs through the void prosion and to whom possession was given by plaintiff of the premises in question, then de ceeding in the probate court; hence it folfendant is estopped to deny that they (were) lows that he is estopped from denying in the holders of the paramount title in the absence this suit by his grantee against him for of evidence tending to show valid conveyance failure of title the validity of the title of his by these parties of their title since the date of the deed under which the defendant claimed or immediate grantor. Harvey cannot dispute claims title."

that the title he tried to convey to this plainWe are referred to no case that precisely tiff is good; that that is the paramount and covers this. It is true that in Cutter v. Wad- the only title, that title under a void proceeddingham, 33 Mo. 269, loc. cit. 282, our Su-ing in the probate court.

[6, 7] But it is said that plaintiff here has preme Court held

"That a vendee holding by deed, holds ad- ) failed to show ouster of her possession of versely to his vendor, and is not estopped to the property. This on the ground that any have been in the hands of the sheriff when, unavailing and that the Haynes Heirs had he demanded possession was void, as no val- prevailed. All in issue there, outside of id writ could issue on what is claimed to be monthly rents and damages, was the right of a void judgment rendered in the action in the Haynes heirs as holders of a title paraejectment.

mount to that which Mrs. Eaker held under The judgment in that action in which the Mr. Harvey, to the right of possession. The Haynes heirs were plaintiffs and this plain- error in entry of the judgment, a misprision tiff defendant, after the title of the cause of the clerk, surely ought not to foreclose the and setting out that the parties appeared by claim of Mrs. Eaker to the protection of the their respective attorneys and announced judgment. She had every reason to believe themselves ready for trial, waiving a jury, that it was a judgment, the effect of which recites that the evidence being produced, the was to dispossess her. There is no sugge3court finds that defendant (plaintiff here) tion that the attorneys in that action, and is indebted to the plaintiffs (the Haynes who were those employed by Mr. Harvey, ever

( heirs) “in the sum of two hundred sixteen notified her that the judgment was defective dollars ($216), month's rent and profits to and did not warrant her eviction. It is the amount of $600 and possession," and it doubtful whether they knew it themselves, or proceeds to adjudge that

whether any one knew it until Mr. Williams, "Plaintiffs have and recover of and from the acting for Mr. Harvey and himself, discovdefendant the sum of two hundred sixteen dol- ered its defect, and that was after Mrs. lars ($216), month's rent and profits $600 and possession and the cost of the proceeding and Eaker had surrendered possession under, as execution issue therefor."

she supposed, and had every reason to supNo lot is described of which possession is pose, a judgment of the court ousting her. awarded. What form of execution issued un- It was the undoubted duty of the attorder this judgment is not in evidence. Con- neys in the case employed by and in fact repcededly this judgment would not, in its shape resenting Mr. Harvey, to have watched the as entered, sustain an order of restitution entry of that judgment and if not one authorfor the lot involved, or for any lot, but we izing surrender of possession, it was their do not think it is void: it could have been duty to have notified Mrs. Eaker of the deamended. Howell v. Sherwood, 242 Mo. 513, fect. They gave her no such notice. It is loc. cit. 546, 147 S. W. 810; Id., 213 Mo. 565, a question which we, however, do not de112 S. W. 50. Notwithstanding this form of cide, whether, even with that defect in the judgment, the sheriff of the county, purport- entry of the judgment, Mrs. Baker could not ing to have in his hands an execution issued have waived it. She knew what was in isin the cause, and in law acting for the plain- sue in the action of ejectment. The sheriff tiffs in the execution, the Haynes heirs, de- coming to her with what purported to be an manded the possession of the property, and execution dispossessing her, was notice to the plaintiff here turned over that possession her of how the case had ended; that is, in to him, presumably for the Haynes heirs, favor of the Haynes heirs and against her, who thereupon entered into possession and and to avoid further expense and litigation, so held possession until they subsequently it may be that she could waive the defect. sold it to a third party. Beyond doubt this parties are not bound to make useless deplaintiff surrendered possession under the be- fenses. It is sufficient to say that acting on lief that she was doing so in compliance of the belief of the sufficiency of the judgment, the judgment of the court in the action of she did surrender possession, and to those ejectment. She was a party to it; she knew then holding paramount title. that it had gone against her and that the Under such a state of facts it would be Haynes heirs had prevailed, and when the highly unjust to hold that the surrender of sheriff demanded possession ostensibly under possession by Mrs. Eaker was voluntary. a writ issued in that case, ignorant of the Such a holding would be so technical as to facts, she surrendered possession. Under this lose sight of the very right of a case and

, state of facts we think that this plaintiff was sacrifice that right to a quibble, relegating authorized and warranted in yielding posses- us to the days when courts were more consion to the sheriff as for the Haynes heirs cerned with forms than substance. Our statas lawfully entitled to possession, and that utes, Revised Statutes 1909, § 2082, forbids it sufficiently appears that at that time the this, and our courts are always, in a proper Haynes heirs held the paramount title. case, glad to obey it.

Mrs. Eaker had, so far as the evidence We see no error in the action of the court here discloses, never employed any attorney in giving the two other declarations of law to defend that action. The attorneys who did asked by plaintiff, nor in its refusal to give defend it were employed by Mr. Harvey. It those asked by defendant; it gave three does not appear that those attorneys gave which covered the view of defendant but her any notice of any defect in the judgment; found against him on the facts. she was notified by the sheriff, with the exe. Our conclusion on the case is, that the cution in his hand, that judgment had gone judgment of the trial court is for the right against her. That judgment, however in- party. That judgment is affirmed. formal, certainly established the fact that

« 이전계속 »