tion, cites Henry Bill Pub. Co. v. Durgin, 101 | foreign state, rendered the contract imposMich. 458, 59 N. W. 812; Arbuckle Bros. v. Kirkpatrick, 98 Tenn. 221, 39 S. W. 3, 36 L. R. A. 285, 60 Am. St. Rep. 854; Conn v. Chambers, 123 App. Div. 298, 107 N. Y. Supp. 976; Snelling v. Arbuckle Bros., 104 Ga. 362, 30 S. E. 863; Arbuckle Bros. v. Gates, 95 Va. 802, 30 S. E. 496; Standard Fashion Co. v. Cummings (Mich.) 153 N. W. 814. But upon the facts involved in each of those cases the conclusions reached therein afford no persuasive authority for the said contention of counsel. [5] We have reached the conclusion above expressed from a consideration of the provisions of the contract alone. But if the contract can be said to be ambiguous, by reason of its apparently contradictory provisions, rendering obscure the true intent and purpose thereof, then the contemporaneous acts and declarations of the parties-defendant's advertisement and the correspondence leading up to the contract-may be looked to to resolve such ambiguity. Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25, 84 S. W. 76. And, if necessary to resort to evidence aliunde to explain the contract, this rule is in no wise affected by the declaration in the contract itself that it embodies all prior negotiations, etc. This is nothing more than that which the law presunies as to all written contracts that are definite and clear; but it does not prevent resort to extrinsic evidence of the proper sort, where by such means alone doubt may be removed as to the meaning of terms employed in the writing. The company advertised for a man to manage a "branch wholesale business," and wrote appellant that it was its intention to open a branch business from which to distribute its goods, using the office in South Carolina as a "distributing depot" for that territory. It further wrote appellant that the latter's $1,000 would be "perfectly secure," being "always represented either by merchandise on hand or cash for the same," and would be returned to appellant upon his return of goods on hand. We think the writing, considered alone, is susceptible of but one rational interpretation. However, any doubt that may come from the use of certain terms employed therein is readily dispelled when the contract is read in the light of the acts and declarations of the company leading up to its execution. [6-9] It is true that the company's subsequent failure to comply with the laws of South Carolina did not render the contract void ab initio. It was competent for the company to contract in this state with an agent looking to the transaction of business in the state of South Carolina. Hogan v. City of St. Louis, 176 Mo. 149, 75 S. W. 604. But the company, by its own act in failing to seasonably comply with the laws of the sible of lawful performance. Appellant conducted the business for a period of about two months. This, perhaps, could be lawfully done (see South Carolina Code 1902, vol. 1, chapter 44, p. 680 et seq.); but we need not so decide. In any event, it was unlawful for appellant to continue to conduct the business beyond a period of 60 days; and the corporation, having thus rendered the contract impossible of performance, became liable as for a breach thereof. And we think that appellant was thereupon entitled to tender back the goods and recover, as damages for the breach, his $1,000, salary earned, and expenses. [10] But it is argued that appellant is not proceeding on the contract, and is not entitled to recover on the theory that the corporation was guilty of a breach thereof in the manner mentioned. The appellant filed with the referee a "claim," verified by oath, to which was attached a copy of the second count of the petition filed in the original suit. The latter, inter alia, avers that the contract, by defendant's alleged acts, became "impossible to perform, inoperative, and void." The claim itself states that the demand is based on the contract filed with the original petition as an exhibit. The ordinary rules of pleading do not apply with strictness to such proceedings as these. And we see no objection to granting appellant the relief to which he appears to be entitled. The contract, strictly speaking, was not void. It could have been performed, had the company taken the requisite steps in the premises; but by its own act it rendered it impossible for appellant to lawfully perform his part thereof, whereby it became liable as upon a breach of its undertaking. There is no evidence in the record in proof of the amount, if any, of the expenses claimed to have been incurred by appellant in undertaking to perform the contract. The judgment will accordingly be reversed, and the cause remanded, with directions to the circuit court to order the allowance of appellant's claim for $1,300. It is so ordered. 2. ESTOPPEL 38-AFTER-ACQUIRED PROPERTY-BREACH OF COVENANT. Defendant, in an action for damages for breach of covenants of title contained in his general warranty deed, who had acquired title by enforcement of a void deed of trust executed to him by the guardian of certain infant heirs, who afterwards demanded possession of plaintiff and to whom he surrendered possession, was estopped to deny that such heirs were the holders of the paramount title, in the absence of evidence tending to show a valid conveyance by such parties of their title since the date of the deed under which he claimed title. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 99-107; Dec. Dig. 38.] 3. NAMES 14-IDENTITY OF PERSON. Identity of name, in the absence of proof to the contrary, is identity of person. [Ed. Note. For other cases, see Names, Cent. Dig. 10; Dec. Dig. 14.] 4. COVENANTS 121-JUDGMENT SIVENESS-EJECTMENT. CONCLU A judgment in ejectment against the terre tenant, when the covenantor in the deed is made party to the suit, is to be received in evidence as concluding the question of paramount title. 6. COVENANTS 101 ACTION FOR BREACH OF COVENANT OUSTER BY PARAMOUNT TITLE JUDGMENT. A grantee under a general warranty deed of a lot which defendant, the grantor, had acquired by foreclosure of a deed of trust, executed by the guardian of certain infant heirs under order of the Probate Court but void because beyond the power of the court, against whom the minor heirs afterwards made demand of possession and obtained a judgment in ejectment defended by the defendant herein, and who upon the sheriff's writ of execution or restitution turned over their possession to him, without notice from the defendant of any error in the form of judgment, showed an ouster of her possession of the property by paramount title, and could not be held to have surrendered voluntarily; especially in view of Rev. St. 1909, § 2082, providing that the Courts of Appeal shall not reverse unless for error materially affecting the merits of the action. R. P. & C. B. Williams, of St. Louis, for appellant. Felix Cornitius and Grant & Grant, all of St. Louis, for respondent. REYNOLDS, P. J. Respondent, plaintiff below, brought her action against the defendant, now appellant, to recover damages for breach of covenants of warranty of title to a certain lot in Malden, Dunklin county, this state, known as the east half of outlot number 20, in that city, conveyed to her and her husband by defendant by a general warranty deed. Averring that her husband had since died and that the title had vested in plaintiff, she avers that she had entered into possession of the premises, and in June, 1907, had relinquished possession thereof to certain parties, here, for brevity, designated as "the Haynes heirs," they claiming by an older and better title and on which, on April 1st, 1905, they had brought an action in ejectment against this plaintiff to recover possession of the lot, of which action defendant here had due notice and opportunity to defend and did in fact enter his appearance for the purpose of defending, but had failed and neglected to make any defense therein; that the Haynes heirs, having a better title to the premises, thereupon lawfully entered into the possession thereof; that on January 10th, 1903, and ever since that time these parties had and have continued to have the lawful right to the premises by an elder and better title; that the costs in the action amounted to $14, which plaintiff has been compelled to pay and that by reason of the premises plaintiff has been damaged in the sum of $400, for which she prays judgment. The answer, after a general denial, pleads the three-year and five-year statute of limitations. The fact of filing the action in ejectment by the Haynes heirs against the plaintiff, as alleged, was in evidence, the petition describing the lot and asking for possession and damages. It was in evidence that defendant had been notified of the pendency of the action and had employed the counsel who conducted the defense therein in the name of Mrs. Eaker, 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. 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 county, some time in June, 1907, with the [Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 419-430; Dec. Dig. 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. Action by Alice M. Eaker against Thomas B. Harvey. Judgment for plaintiff, and defendant appeals. Affirmed. session of the premises in behalf of the Haynes heirs, plaintiffs in the ejectment, and that thereupon plaintiff had surrendered the possession of it to him and that the Haynes under this order that the deed of trust was made by the guardian and curator of the Haynes heirs, and at a sale thereunder Harvey purchased. It was also in evidence that after Mrs. Eaker had been dispossessed or had surrendered possession of the premises, Mr. R. P. Williams, who was the attorney associated with Mr. Harvey in the suit in the United States Court, and who, representing Mr. Harvey, had employed the firm of attorneys who defended the action of ejectment, went to the county seat of Dunklin county and examined the record and files in the ejectment action and then discovered the form of the judgment which had been rendered in that action, and returning to St. Louis advised Mr. Harvey that in his opinion that judgment was void. 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 that plaintiff in this action had never been in possession of it since June, 1907. It was also in evidence that the defendant herein, an attorney at law, had, in connection with another attorney, rendered services for the Haynes heirs and possibly their father, in the United States Circuit Court, as it then was, for which a fee was due, and that to secure the payment of this fee the guardian and curator of the Haynes heirs, who were then minors, had, under the purported authority of the probate court of Dunklin county, made a note for $300 in favor of Mr. Harvey, the defendant here, and to secure it, had executed a deed of trust upon the lot in question; that note not being paid when due, the trustee, acting under the provisions of the deed of trust, had sold the lot and defendant purchased it, the trustee executing a deed to him, and that Mr. Harvey had thereupon conveyed the lot described to plaintiff and her husband by a statutory general warranty deed, of date January 10th, 1903, in consideration of $400. The records of the probate court authorizing the guardian and curator of the Haynes heirs to make the note and deed of trust were in evidence. This is practically all the material evidence in the case. At the conclusion of the trial, which was before the court, a jury having been waived, the court, at the instance of plaintiff, gave three declarations of law. It also gave three declarations of law at the instance of the defendant. We do not think it necessary to set out any of these here, but shall hereafter set out the substance of the third declaration given at the instance of plaintiff, upon which defendant particularly assigns error. Defendant also asked a declaration of law to the effect that if the court, sitting as a jury, found from the evidence that at the time plaintiff delivered possession of the prop erty described in the deed from defendant to plaintiff and her husband, to the Haynes heirs, that the Haynes heirs were not the owners of a superior or paramount title, the plaintiff cannot recover. clare as a matter of law that under the evidence in the case, the verdict and judgment should be for defendant. These were refused. Defendant further asked the court to de Defendant objected and excepted to the refusal of these declarations and to the giving of those asked by plaintiff. It is recited by the guardian and curator in the petition on which the above order was made by the probate court, that there was pending in the United States Circuit Court an action in attachment against all the real estate of the minors, seeking to subject it to alleged indebtedness of their father: that unless that action was properly defended the property of the minors would be sacrificed; that Thomas B. Harvey, an attorney, had been retained to defend the litigation and the fee agreed to be paid him was $300; that this attorney demanded that the payment of this fee be secured by deed of trust upon the east half of out-lot number 20 in the city of Malden; that the curator believed and is advised that the interests of the minors (Haynes heirs) require that such deed of trust be executed and he prayed for an order of court authorizing and empowering him to execute a note in the sum of $300, payable to the order of Harvey, due twelve months after date and for an order empowering him to execute and deliver to Harvey a deed of trust on the lot securing payment thereof. Afterwards alleging that a mistake had been made as to the amount of the fee, the guardian and curator asked that he be 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 court sion 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 charac The court found for plaintiff and entered up a judgment in her favor in the sum of $400, with interest from January 3rd, 1903, amounting to $238.40, an aggregate of $638.40. From this the defendant, his motion for a new trial overruled, duly appealed. Learned counsel for appellant assign four grounds why this judgment should be reversed and judgment be here entered for defendant. himself, who had made the demand of possession of plaintiff, was a trespasser if he at the time had an execution or writ of restitution upon the void judgment. Third, that it devolved upon plaintiff to show an ouster for possession of the property turned over to her by defendant; that this is a prerequisite for the right to sue for breach of the covenant of warranty unless the owner and holder of paramount title has made demand for possession of the property. In such case proof of ownership at the time of the party to whom possession was delivered is incumbent upon the grantee. Fourth, that defendant is not estopped to deny the title of parties who executed the deed of trust to him after sale and purchase under the deed of trust, and that this being true there is a total failure of proof as to paramount title in the parties to whom the possession was given; there is no proof that they ever had any title to the property; there is no proof that they have title to the property to-day; there is no proof that they are the same parties who claimed the property at the time the deed of trust was executed. [1] We may remark, before considering these assignments, that it is rightly conceded that the deed of trust from the guardian and curator of the Haynes children was absolutely void. The probate courts of our state have no power to authorize the sale or incumbrance of the property of minor wards except for the education, support and maintenance of the minor or for investment. So our Supreme Court held in Capen v. Garrison, 193 Mo. 335, loc. cit. 348 et seq., 92 S. W. 368, 5 L. R. A. (N. S.) 838, and so our court held in Leet v. Gratz, 92 Mo. App. 422, loc. cit. 436, and following. [2, 3] Notwithstanding that, all the title which the defendant here had to this lot, so far as appears, came through this deed, and that title was that of the Haynes heirs, acting or assuming to act through their guardian and curator. So they stood as grantors of defendant: he acquired all the title he had through a purchase at a sale under the deed of trust made by the trustee. With this fact in evidence the court at the instance of plaintiff gave the third declaration of law in which it declared that The cases referred to in the Cutter Case as settling this in our state are Macklot v. Dubreuil, 9 Mo. 477, 43 Am. Dec. 550; Joeckel v. Easton, 11 Mo. 118, 47 Am. Dec. 142; Landes et al. v. Perkins, 12 Mo. 238; and Blair v. Smith, 16 Mo. 273. In every one of these, as well as in Cutter v. Waddingham, supra, the vendee either relied upon adverse possession, or showed a title superior to that of his vendor. That did not occur here. This defendant showed no outstanding title to defeat that of his grantors. That those grantors were the same persons to whom the plaintiff here, through the sheriff, surrendered possession, is not disputed: they were the Haynes heirs. Identity of name, in the absence of proof to the contrary, is identity of person. In Steele v. Culver, 158 Mo. 136, loc. cit. 138, 59 S. W. 67, it is said that "It requires no citation of authority to show that a man cannot question a title given by himof his own deed." self or hold possession of the land in the face In State Bank of West Union v. Keeney, 134 Mo. App. 74, loc. cit. 79, 114 S. W. 553, 555, it is said quoting from Adams v. Wildes, 107 Mass. 123: * * in a third party, where the assertion of such "A vendor is estopped from setting up title title is equivalent to the admission of the breach on his part of an implied warranty of title. vendee, he should not now be heard to say that * In a contest between himself and his he had no title at the date of the sale, although at that date he asserted to his vendee that he had a good title." We see no error in this third declaration. [4] A judgment in ejectment against the terre tenant when the covenantor in the deed is made party to the suit is to be received in evidence as concluding the question of paramount title. It is competent for that purpose. [5] On the other hand, when no such judgment is given, the covenantee whose title has failed may nevertheless recover for the breach from the covenantor by showing a surrender to a paramount title. hereafter see, we think that in this case there was enough shown to disclose that plaintiff surrendered to a paramount title and that the judgment may be irregular is unimportant. 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." We are referred to no case that precisely covers this. It is true that in Cutter v. Waddingham, 33 Mo. 269, loc. cit. 282, our Supreme Court held "That a vendee holding by deed, holds adversely to his vendor, and is not estopped to that the title he tried to convey to this plaintiff is good; that that is the paramount and the only title, that title under a void proceeding in the probate court. [6, 7] But it is said that plaintiff here has failed to show ouster of her possession of the property. This on the ground that any The judgment in that action in which the Haynes heirs were plaintiffs and this plaintiff defendant, after the title of the cause, and setting out that the parties appeared by their respective attorneys and announced themselves ready for trial, waiving a jury, recites that the evidence being produced, the court finds that defendant (plaintiff here) is indebted to the plaintiffs (the Haynes heirs) "in the sum of two hundred sixteen dollars ($216), month's rent and profits to the amount of $600 and possession," and it proceeds to adjudge that 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 Mr. Harvey, to the right of possession. The error in entry of the judgment, a misprision of the clerk, surely ought not to foreclose the claim of Mrs. Eaker to the protection of the judgment. She had every reason to believe that it was a judgment, the effect of which was to dispossess her. There is no suggestion that the attorneys in that action, and who were those employed by Mr. Harvey, ever notified her that the judgment was defective and did not warrant her eviction. It is doubtful whether they knew it themselves, or whether any one knew it until Mr. Williams, acting for Mr. Harvey and himself, discovered its defect, and that was after Mrs. Eaker had surrendered possession under, as she supposed, and had every reason to suppose, a judgment of the court ousting her. "Plaintiffs have and recover of and from the defendant the sum of two hundred sixteen dollars ($216), month's rent and profits $600 and possession and the cost of the proceeding and execution issue therefor." No lot is described of which possession is awarded. What form of execution issued under this judgment is not in evidence. Concededly this judgment would not, in its shape as entered, sustain an order of restitution for the lot involved, or for any lot, but we do not think it is void: it could have been amended. Howell v. Sherwood, 242 Mo. 513, loc. cit. 546, 147 S. W. 810; Id., 213 Mo. 565, 112 S. W. 50. Notwithstanding this form of judgment, the sheriff of the county, purporting to have in his hands an execution issued in the cause, and in law acting for the plaintiffs in the execution, the Haynes heirs, demanded the possession of the property, and the plaintiff here turned over that possession to him, presumably for the Haynes heirs, who thereupon entered into possession and so held possession until they subsequently sold it to a third party. Beyond doubt this plaintiff surrendered possession under the belief that she was doing so in compliance of the judgment of the court in the action of ejectment. She was a party to it; she knew that it had gone against her and that the Haynes heirs had prevailed, and when the sheriff demanded possession ostensibly under a writ issued in that case, ignorant of the facts, she surrendered possession. Under this state of facts we think that this plaintiff was authorized and warranted in yielding possession to the sheriff as for the Haynes heirs as lawfully entitled to possession, and that it sufficiently appears that at that time the Haynes heirs held the paramount title. Mrs. Eaker had, so far as the evidence here discloses, never employed any attorney to defend that action. The attorneys who did defend it were employed by Mr. Harvey. It does not appear that those attorneys gave her any notice of any defect in the judgment; she was notified by the sheriff, with the execution in his hand, that judgment had gone against her. That judgment, however informal, certainly established the fact that It was the undoubted duty of the attorneys in the case employed by and in fact representing Mr. Harvey, to have watched the entry of that judgment and if not one authorizing surrender of possession, it was their duty to have notified Mrs. Eaker of the defect. They gave her no such notice. It is a question which we, however, do not decide, whether, even with that defect in the entry of the judgment, Mrs. Eaker could not have waived it. She knew what was in issue in the action of ejectment. The sheriff coming to her with what purported to be an execution dispossessing her, was notice to her of how the case had ended; that is, in favor of the Haynes heirs and against her, and to avoid further expense and litigation, it may be that she could waive the defect. Parties are not bound to make useless defenses. It is sufficient to say that acting on the belief of the sufficiency of the judgment, she did surrender possession, and to those then holding paramount title. Under such a state of facts it would be highly unjust to hold that the surrender of possession by Mrs. Eaker was voluntary. Such a holding would be so technical as to lose sight of the very right of a case and sacrifice that right to a quibble, relegating us to the days when courts were more concerned with forms than substance. Our statutes, Revised Statutes 1909, § 2082, forbids this, and our courts are always, in a proper case, glad to obey it. We see no error in the action of the court in giving the two other declarations of law asked by plaintiff, nor in its refusal to give those asked by defendant; it gave three which covered the view of defendant but found against him on the facts. Our conclusion on the case is, that the judgment of the trial court is for the right party. That judgment is affirmed. |