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Duncans in St.Louis Co. MO Court Records Part 2


Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised March 26, 2004


"Reports of cases determined in the Supreme Court of the state of Missouri from July 1848 to October 1849" by Louis Houck, Consellor at law, Vol.XII, pgs.136 to 141; ("Missouri Reports") Vol.12, pgs.215 to 222 (California State Law Library, Sacramento, 1/2004)
      DOGGETT et al. v. LANE et al; Supreme Court of Missouri; 12 Mo. 215; October, 1848, Decided.
      Appeal from St. Louis Circuit Court.
      This was a suit in chancery instituted by the appellants who are the widow and heirs of John Doggett, deceased, against the appellees, to set aside a conveyance alleged to have been made by the said John Doggett in his life-time, to the defendant, Lane, of a tract of land in St. Louis county, containing 672 arpents. The deed bears date 1st day of June, 1829, and was acknowledged on the same day before Jos. C. Brown, a justice of the peace, and subsequently recorded. The consideration expressed in the deed is $350; the bill alleges that at the date of this deed John Doggett, the grantor, was greatly reduced by disease, insomuch that his mind was greatly impaired, if not entirely gone; that he had been for some time before that date suffering from protracted sickness, which continued gradually to grow worse until he finally died of it in 1831. That from the time of his first attack, which was prior to June, 1829 (the date of the deed), his mind and body were both so much impaired as to wholly disqualify him from managing his business with care and prudence, and that the disease which was paralysis, was of a nature which necessarily impaired his mental faculties, and ultimately rendered him entirely imbecile. That during the whole of this period the defendant, Lane, was his family physician, and availing himself of the said Doggett's enfeebled condition and of his (Lane's) influence over him, and whilst Doggett was thus prostrate with disease, both bodily and mental, prevailed upon Doggett to execute the deed aforesaid. That the three hundred and fifty dollars named as the consideration, was in fact never paid by Lane, except so far as his bill for medical attendance went. That he paid nothing except in the way of medical services, and they did not amount to $350. That the land was then very valuable and worth at least ten times as much as Lane professes to have paid for it. That the deed was therefore fraudulent and obtained by undue influence, and for a merely nominal consideration. The bill also sets out Doggett's title to 350 arpents of the tract and describes the land particularly. One hundred acres of the tract was conveyed by Wm. Massie, who claimed under Samuel and Amos Duncan, the confirmees to David Barton, and by the latter to said Doggett; the said Wm. Massie having died, Chas. S. Hempstead, administrator of Christian Wilt obtained a judgment against the administrators of said Massie, upon which an execution issued in 1824, which was levied upon 249 arpents, part of the said tract of 672 arpents, and at a sale of the same by the sheriff under said execution, the said Doggett became the purchaser of the said 249 arpents, which was accordingly conveyed to him by the sheriff. In this way Doggett acquired title to the 100 acres purchased of Barton and the 248 arpents purchased at sheriff's sale.
      The bill further states that as to the remainder of the tract of 672 arpents, the complainants are not advised how Doggett acquired tittle, but that for many years before his death he was in the quiet possession and enjoyment of it, and that after his death up to the time of bringing this suit his widow and children had continued to reside upon and occupy the land, claiming it under the said Doggett, who, in his life-time, claimed to own the tract, and the complainants have no doubt he had a valid title thereto. They call upon Lane to answer as to the condition of Doggett's health, mental and bodily, at the date of the deed, and to state what consideration he paid and how and when he paid it, and pray that the conveyance be set aside as fraudulent.
      An amended bill was afterwards filed charging in substance that the defendant, Ewing, now claimed to be the owner of all the interest acquired by Lane under the deed from Doggett, and that Lane disclaimed all further interest in the property. But that Ewing's title, if he had any, was only colorable. That he was in fact holding in secret trust for Lane, who was the real owner, and that if Ewing had in fact purchased from Lane, he purchased with notice of the fraudulent manner in which the deed was obtained and stood in no better position than Lane himself.
      Ewing in his answer denies all knowledge of the manner in which the deed from Doggett to Lane was obtained and all notice of any fraud in obtaining the same, but believes it was fairly obtained. Denies also Doggett's insanity or imbecility, and claims that on 21st November, 1842, he (Ewing) purchased at sheriff's sale under execution against Lane all his right and title to the said tract at the price of $10, and received a deed from the sheriff therefor. That in order to perfect his title to said tract and other property he had previously obtained control of the judgments under which the said tract was sold, for which judgments he paid over $2,000. That he has also purchased a conflicting claim of one Jno. B. Ranney to a portion of said tract for which he paid $240. That on 1st December, 1843, the said tract was also sold for taxes, at which he, Ewing, bought it. Denies also that he holds in trust for Lane, but claims that he purchased on his own account, and with his own funds, and that Lane has no interest in it.
      Lane in his answer admits that Doggett was in possession of a part of the tract of 672 arpents in his life-time, but not of the whole tract, and denies that Doggett ever claimed to own the whole tract. That his title was exceedingly defective as to any part of the tract except the 100 acres bought of Barton. That in December, 1827, Doggett proposed to sell him his interest in the tract for $350. That he, Lane, took time to consider of it, and in March of the next year, concluded to accede to the offer, and so informed Doggett, when the trade was agreed upon. That between that day and the 1st June following, he made payments to Doggett, and assumed debts for him to the whole amount agreed to be paid, on which day the purchase-money being thus fully paid, a deed was executed by Doggett and wife. On the said 1st June, the payments he alleges were made as follows: Five dollars cash on 6th March, the day the bargain was closed. On same day executed his note to Doggett for $100, payable twelve months after date, which was paid at maturity; $52 agreed to be due for medical services. On 28th May, 1829, paid Doggett one hundred dollars cash and gave him at same time an order on Hough for ten dollars. The balance was paid in debts assumed for Doggett to N. W. Whistler and others. Denies Doggett's insanity or imbecility at date of the deed, or at any other time so far as he knows or believes, except for a few hours at a time, during periods of severe illness. Denies all fraud or imposition, on the contrary, insists that at the date of the purchase Doggett was perfectly sane and rational, and the purchase was made at his urgent request. That the complainant, Nancy, his widow, was present at the time, knew his condition and voluntarily signed the deed and relinquished her dower. That since that time said Nancy has often received favors and professional advice from him and has never complained of any unfairness. Says there were several conflicting claims to said land, and that Doggett's title was not worth three hundred and fifty dollars at the time. Sets out several conflicting claims which he has since purchased to said land, for which he paid $2,090 including what has been since paid by Ewing, all of which claims he says were known to Doggett and himself, at the date of the said deed. Admits that after the purchase from Doggett he permitted Doggett to occupy a portion of the tract up to the time of his death, and after that as his family were poor, he permitted his widow and children to reside there, always, however, as tenants at will. Denies that he has now any interest in the tract, but that the same was sold to Ewing under execution as stated in Ewing's answer, and that Ewing does not hold in trust for him, but purchased on his own account and with his own funds.
      General replications were filed to the answers of Lane and Ewing, and upon the hearing, several witnesses were examined on the part of the complainants who testified to their belief that at or about the 1st June, 1829, and some of them prior thereto, and from thence up to the time of Doggett's death, he was greatly enfeebled in body and mind, that his mind was so impaired as to render him incapable of transacting business with prudence. That he was subject during the whole period to convulsions, and finally became completely paralyzed and died in that condition, about two years after the date of the deed to Lane; some of these witnesses considered him deranged for several years before his death and gave the reasons for that opinion founded upon his conduct and conversation. In their estimate of the value of this tract of land in June, 1829, they ranged from four dollars to ten dollars per acre, none of them fixing it at less than the former sum. See the testimony of James Bissell, St. Cyr, Brazeau, Chick, Gardner, Ranney, Graham, Quick, and Mrs. Jackson.
      Defendant on his part introduced several witnesses, amongst others Joseph C. Brown, one of the subscribing witnesses to the deed from Doggett to Lane, and who was the justice who took the acknowledgment of the deed at the request of the defendant, Lane. He testifies that at the time of the acknowledgment of the deed, Doggett was sick in bed, but was convalescent. That he seemed to be rational and to understand what he was doing. That the witness saw nothing in his deportment to excite any suspicion that he was not capable of transacting business and did not fully understand what he was about. If he had observed anything to the contrary, he would not have taken the acknowledgment. That the defendant, Lane, delivered the deed to witness at the city of St. Louis and requested him to call at Doggett's residence and take the acknowledgments, which he accordingly did at the residence of Doggett, Dr. Lane not being present.
      This and the other witnesses for defendant testified that although Doggett was in feeble health for several years before his death, he was in the habit of going about the neighborhood, and to the city, and they saw nothing to justify the belief that he was either insane or incapable of transacting business with prudence and discretion. Hyatt, one of said witnesses, proves that on 30th January, 1830, he (witness) as administrator of widow Whistler, sold at auction the effects of her estate. That Doggett was at the sale and bought some articles to the value of $68.50, and gave his note with security for the amount. That he was pale and emaciated, but walked around from place to place as the articles were sold, and witness then nor at any other time saw any symptoms of mental alienation. When the note became due in January, 1831, Doggett referred him to Dr. Lane for payment, and it was paid by Lane. Witness about same time held note on Doggett, due to Sullivan's estate; when it became due, Doggett referred him to Lane, who paid it. Doggett said Lane owed him, but did not state on what account. See also testimony of Murray, Milburn, Cerre, Goodwin and White. Defendant also read in evidence several deeds and other instruments to show that the title to said tract was not only perplexed, but that defendant, Lane, and after the sale to Ewing, the latter had been compelled to pay out considerable sums to purchase in outstanding titles or claims to said lands. They also read in evidence the sheriff's deed to Ewing for Lane's interest in this and sundry other tracts.
      At the hearing, after the testimony was closed, the complainants moved to dismiss their bill without prejudice, but the court refused to allow it, to which the complainants excepted. The court upon the hearing dismissed the complainant's bill absolutely and refused the relief prayed for. The complainants moved for a re-hearing for the usual reasons, which the court overruled, and and complainants appealed.
      (MAD: arguments of counsel omitted here)
      (opinion) NAPTON, J. The course which this case took in the Circuit Court would seem to indicate that the counsel who managed the case there did not have much confidence in the point which is solely relied upon for the reversal of the decree. At the hearing before the Circuit Court, a motion was made by the complainant to dismiss their bill without prejudice, and an exception was taken to the overruling of this motion. No point is made upon the exception here, and it is now contended that upon the bill, answers and testimony, the complainants were entitled to a decree.
      We shall state very briefly some of the reasons suggested by a careful examination of the record, which have induced us to yield a ready concurrence in the disposition which the Circuit Court made of the cause.
      The answer of Lane is full, explicit and utterly contradictory of every allegation in the bill which could lay the foundation of a decree favorable to the complainants. This answer is not attempted to be disproved, except upon the matter of Doggett's incompetency. The testimony on this head will be found substantially set forth in the statement, and it is not, in our judgment, of such a character as would authorize the court to set aside a contract upon the ground of mental imbecility or insanity.
      It appears that Doggett, previous to 1829, when this sale to Lane was made, had been afflicted at intervals with convulsions or epileptic fits; that these attacks were succeeded by partial paroxysms which ultimately produced his death, in 1831. No doubt this disease impaired to some extent the mental, as it did the bodily faculties of Doggett, but there is an entire failure of proof to show that at the time of this contract, or even afterwards, there was anything approaching to insanity, or such continued imbecility of mind as would incapacitate the sufferer from transacting his usual business. Some of the witnesses express an opinion, that at times Doggett was incompetent to manage his own affairs, but no facts are given sufficient to warrant the inference that these opinions were well founded. Every incident related by the witnesses to prove his incompetency may as well be accounted for on a different hypothesis.
      If there were circumstances of fraud or imposition in the case, such as gross inadequacy of price, or concealment of facts essential to a proper understanding of the contract, we might look more narrowly into the evidence of incompetency. But Lane's answer disproves everything like imposition or fraud. His account of the matter, which is entirely uncontradicted, is, that having been on a visit to a patient in Doggett's neighborhood, he happened at his house about night-fall, and at his instance remained all night: that Doggett proposed to sell him his land, and stated his price: that he took time to consider this proposition, and about two months afterwards informed Doggett that he would buy it at the price proposed; that the bargain was thereupon concluded, and Lane had a deed drawn up in St. Louis and sent it to Doggett's residence, about twelve miles from the city, by a justice of the peace who is a witness in the case. This justice testifies that the deed was signed by Doggett without question, and apparently with a full understanding of its purport, and that his wife (who is one of the complainants), executed her relinquishment of dower in the usual form, and after having been fully apprized of the character of the instrument. There surely could have been no imposition here, for Lane was not present at the execution of the deed, and when the contract was originally made, Lane was not attending Doggett as a physician, but visiting his house as a friend, and the proposition for the sale come from Doggett.
      Nor is there any proof of inadequacy of price. Both Doggett and Lane were aware that Doggett's title was defective. They both considered his title to about seventy acres as good, but as to the balance of the 672 arpents, it was a mere speculation, and so understood by both parties. It cost Lane upwards of $2,000 to perfect the title, or at least to buy up such claims as were thought to threaten its stability. How are we to say that the price was inadequate? By what criterion shall we determine the value of a speculation of this kind? Doggett thought the price sufficient, as he himself proposed it, and Mrs. Doggett was not dissatisfied with it, as she made no objections, and both had ample time for reflection.
      But there is another circumstance stated by Dr. Lane, and confirmed by some of the witnesses, which is entitled to weight. Long after this transaction, and up to Doggett's death, Dr. Lane continued to be on friendly terms with the family. There was a relationship between them, and after Doggett's death, his widow continued to receive professional services and other acts of kindness from Dr. Lane rendered without compensation, and no intimation was ever suggested of this fraud upon her husband. Mrs. Doggett was permitted to remain in possession of this tract of land for several years after her husband's death, as Dr. Lane's tenant, and this tenancy was repeatedly acknowledged, and continued until the land passed from Dr. Lane to Ewing.
      It is not very creditable to Mrs. Doggett to receive favors from a man whom she at the same time believed to have defrauded her husband. In fact her conduct shows most plainly that she did not entertain this opinion of Dr. Lane until shortly before this suit was instituted. The bill was filed in 1845, and the deed to Lane was executed in 1829. An acquiescence for fifteen years in a fraud of this character, accompanied as it must have been with a full knowledge of its existence from the time it was perpetrated, ought to be accounted for.
      The deed from Doggett to Lane was a conveyance without warranty -- a circumstance which confirms the statement of Lane in his answer, that both Doggett and himself were fully apprised of the uncertainty of the title.
      Upon the whole, without adverting to the details of the testimony, Dr. Lane's conduct in this transaction seems to have been perfectly upright, and not a single circumstance has been proved tending to cast any suspicion of fraud or imposition. The only facts in the case which could have such a tendency, are, that he was dealing with a man afflicted with a chronic disease, and was his family physician. These facts alone do not warrant an inference of fraud, especially when there are no attending circumstances to corroborate such an inference.
      It is useless to consider the case with reference to the defendant, Ewing, who was a purchaser under executions against Lane, without notice of the particular character of Lane's title, or the manner in which it was acquired. Whether he would have been affected by Lane's frauds, had any such been committed, we shall not consider, as no fraud was proved upon Lane.
      Although the propriety of dismissing the bill generally, notwithstanding the motion of the complainants to have it dismissed without prejudice, is not discussed in the written argument submitted to the court, yet as it is made a point in the assignment of errors, it is proper to dispose of it. After the case was fully submitted at the hearing, without any pretense that any additional facts could be procured, we think the court was fully justified in making a final decree. There must be an end to litigation in chancery as well as in a court of law. The Chancellor has doubtless a discretion in such matters, but there was nothing in this case to show that this discretion was unsoundly exercised. The other Judges concurring, the decree is affirmed.
      (MAD: from the Missouri Supreme Court Historical Database
            Superior Court Case Files; Contributor Appellant/Administrator Ambrose Boles, Respondent Ebenezer Hodges, Appellant/Deceased Samuel Duncan, Respondent/Deceased Edward Hodges, filed 1807, St. Louis Co. Civil proceeding, debt, subject Rufus Easton; Identifier Old Folder Number 113, Location F/1/1, Box 10, Folder 30; Courtesy of the Missouri State Archives.
            Superior Court Case Files; Contributor Appellant John Duncan, Respondent William Massey, filed 1817, St. Louis Co. Civil proceeding, land dispute; Identifier Location F/1/4, Box 43, Folder 32; Courtesy of the Missouri State Archives. MAD: listed here because of William Massey.)

"Reports of cases determined in the Supreme Court of the state of Missouri" by Horatio M. Jones, Reporter, Vol.II; ("Missouri Reports") Vol.23, pgs.151 to 167 (California State Law Library, Sacramento, 1/2004) (MAD: see 18 Mo. 531))
      DICKSON & GANTT, Plaintiffs in Error, v. DESIRE'S Administrator, Defendant in Error; Supreme Court of Missouri, St. Louis; 23 Mo. 151; March, 1856, Decided.
      Error to St. Louis Circuit Court.
      Plaintiffs, C. K. Dickson and T. T. Gantt, filed a demand in the Probate Court of St. Louis county, against the estate of Jacques Desire. The demand, which was for the sum of $5712.50, was founded upon an alleged breach of a statutory covenant of indefeasible seizin, implied from the use of the words "grant, bargain and sell" in a deed of conveyance from the said Desire to Letitia Duncan, from whom plaintiffs claimed by intermediate conveyances, as set forth in the agreed case stated below. This deed purported to convey the lot of land which was the subject matter of the controversy in the case of Chauvin v. Wagner & Dorsett, reported 18 Mo. Rep. 531, to which report reference must be had for a perfect understanding of this case. The demand of plaintiffs was allowed by the Probate Court, and the cause was appealed to the Circuit Court. The cause was submitted to the Circuit Court upon the following agreed statement of facts:
      "The parties agree upon the following facts in this cause, and thereupon pray the judgment of the St. Louis Circuit Court. Either party may appeal or prosecute a writ of error to the Supreme Court.
      "The facts are as follows: On the 8th August, 1835, Jacques Desire made his deed in writing, recorded in book V, p. 31, and thereby, for the consideration of $6,500, to him paid by Letitia Duncan, conveyed to her in fee a lot of ground in block 131, on Market street, St. Louis, having a front of 67 6-12 feet on Market street, which bounds it on the south, by a depth of 104 feet on Seventh street, which bounds it on the west; and in and by said deed said Desire covenanted with said Duncan, her heirs and assigns, that he was seized of an indefeasible estate in fee simple in said real estate, as will appear by reference to said deed, which forms part of this case. Said Letitia Duncan took immediate possession of said real estate, claiming the same under said deed, and continued seized and possessed thereof until the 16th day of December, 1846, when all the right, title, claim and estate of the said Letitia Duncan therein was sold to Walter H. Dorsett by the sheriff of St. Louis county, by virtue of a regular execution issued on a valid judgment against said Duncan. The said Dorsett thereupon immediately took possession of said real estate, and continued seized and possessed thereof until May 12th, 1855, when the heirs of Emily Chauvin, claiming the same by title alleged to be paramount to that of Desire, by the judgment of the St. Louis Court of Common Pleas, recovered against the said Dorsett the possession of said real estate and damages for withholding the possession thereof, and costs. Said judgment was given in a suit begun on 24th August, 1850; and notice of the institution thereof was given to the administrator of Desire by said Dorsett in the month of February, 1851, before the said cause was tried. Said cause was taken to the Supreme Court of Missouri, and decided, as will appear by reference to 18 Mo. Rep. 531. The record of that case may be referred to by either side as part of this case.
      "Prior to the said judgment of the St. Louis Court of Common Pleas in May, 1855, said Dorsett had conveyed to the said plaintiffs, Dickson and Gantt, by quit claim deed, all his interest in said land, and also his right of action, if any, to him accruing, against the estate of said Desire; and they, the said Dickson and Gantt, considering the decision in the case of Chauvin v. Dorsett (18 Mo. 531), to be conclusive of the rights of the litigants, made a compromise with the heirs of Emily Chauvin prior to the 12th day of May, 1855, by means of which the said Dickson and Gantt paid to said heirs the sum of $500; and a petition was filed setting forth that the said Dickson and Gantt were entitled to the one moiety of said tract of land; and the heirs of Emily Chauvin to the other moiety; and an order was made by the St. Louis Land Court for the sale of said real estate, which was done; and at the sale, Dickson and Gantt became the purchasers, and received the sheriff's deed therefor.
      "There was no express assignment by Mrs. Duncan of the covenant of indefeasible seizin made by Desire to Duncan as aforesaid. Plaintiffs claim that it passed to Dorsett, and from Dorsett to them, by the conveyances and transfers above recited, as an incident to the estate of Letitia Duncan; which is denied by the administrator of Desire. Plaintiffs also say that the seizin of Dorsett, vendee of Duncan, was defeated by the paramount title of the heirs of Chauvin, and the recovery aforesaid. The administrator denies that the title of the heirs of Chauvin was paramount; and by this objection, denies that the decision in the case of Chauvin v. Dorsett is law, or is conclusive on Desire, or that said judgment, so rendered on May 12th, 1855, is conclusive upon Desire.
      "Plaintiffs, now respondents, say that they have lost, or that Dorsett, under whom they claim, has lost, by reason of the failure of said Desire's title, and the breach of said covenant of seizin, the one half of said real estate, and $500 in money; and they claim to recover against the estate of Jacques Desire damages amounting to one half of the purchase money received by Desire, and interest thereon from the 24th August, 1845; together with the sum of $500 and interest thereon, from the first day of April, 1855."
      Said deed referred to in the above agreed case, so far as it is necessary to set forth the same, is as follows:
      "This deed, made this eighth day of August, in the year of our Lord one thousand eight hundred and thirty-five, between Jacques Desire and Pelagie his wife, grantors of the first part, and Letitia Duncan, grantee of the second part, all of the city and county of St. Louis, and state of Missouri, witnesseth, that the said grantors for and in consideration of the sum of six thousand five hundred dollars, to them in hand paid by the said grantee at and before the sealing and delivery thereof, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Letitia Duncan, her heirs and assigns, a certain lot, piece, or parcel of ground [describing the same]," &c.
      Upon this agreed case, the Circuit Court gave judgment for the defendant. Exceptions were duly taken. The case is brought to this court by writ of error.
      (MAD: counsel's arguments omitted here)
      LEONARD, JUDGE, delivered the opinion of the court. The question here is as to the capacity of the statute covenant of title, implied from the use of the words "grant, bargain and sell," to run with the land where the breach complained of is the total want of an estate in fee in the grantor. The possession of the land passed with the deed, and the title of the parties, whose claim to the damages is here sought to be enforced, is derived from the first grantee, through a sheriff's conveyance, made upon an execution sale. It is thus seen that we are to deal with a question that has been the subject of frequent discussion in the courts of justice, on both sides of the Atlantic, and upon which it is impossible to reconcile the decisions not merely of different courts, but of the same courts at different periods of time. We proceed to state what we consider the general principles of law applicable to the subject, and then, applying these principles to the case before us, will state the practical results at which we have arrived.
      The sale of a thing imports, from its very nature, an obligation on the part of the seller to secure to the purchaser the possession and enjoyment of the thing bought, the right to possess and enjoy being really that which is purchased. The obligation, therefore, is an incident of the transferred ownership, and goes along with it for its protection; and, in order to afford the holder a just compensation when it is disturbed or lost, the benefit of the obligation devolves of course upon the successive owners. In this manner, it works out the purpose for which it is raised, by holding the original seller, who has the equivalent for the land in his own hands, to his just responsibility, and by yielding the indemnity to the party who has sustained the loss, and is entitled by succession as the last purchaser to the rights of the preceding proprietors in the same chain of title. This natural warranty of title, however, was not recognized by the common law. It was allowed upon the sale of a personal chattel, where the seller was in possession as the apparent owner; but in reference to real property, the maxim was adopted "caveat emptor;" and in such sales, therefore, a conventional warranty was resorted to in practice, which, attaching itself to the estate conveyed, ran along with the land as an incident to it for the benefit of the successive owners. The effect of this engagement was to oblige the warrantor to defend the estate to which it was annexed, into whosoever hands it went, which it accomplished by estoppel or rebutter, when the attack came from the warrantor himself, and by a recovery of other lands of equal value upon voucher or "warrantia chartae," when the attack came from a stranger; and although this conventional warranty of the common law was considered so entirely an accessory obligation that it could subsist only as an incident to some estate in the land, this produced no inconvenience in the ancient system of conveyancing by feoffment and other similar assurances, which, operating upon the possession, created by their own force estates de facto, (tortious estates, as they were called,) sufficient to support the warranty, and carry it along with the land to all the subsequent successors. In the progress of time, however, other modes of transfer were introduced under the statute of uses, which operated upon the right only; and the present covenants of title superseded in English conveyancing the ancient warranty of the common law, which, yielding a recovery in money instead of land, were, for that reason, deemed personal covenants. But they also, without distinction, until broken, from their own nature and purpose, ran with the land, in the same manner as the ancient real warranty. When a breach occurs, however, they are converted into mere rights of action, and these rights are then arrested in the hands of the party who is the owner for the time being, and the action lies where it falls, under the ancient common law rule that forbids the assignment of these rights.
      There seems, however, to be a distinction between the doctrine of the English courts and of some of the leading courts in the United States, as to the character of the breach of a covenant of seizin, that will produce this effect; the former holding that it must be a final, complete breach, giving a right of substantial recovery; while in the latter, the doctrine seems to be that a mere nominal breach, from which no real damage results, is sufficient to merge the covenant in the right of action, and to deprive it of the capacity of running with the land. (MAD: citations omitted here) But now in Massachusetts, as well as New York, and several other states, the covenant of seizin is considered to be, under all circumstances, a covenant in the present tense, which, if broken at all, is broken at the moment of its creation, and is immediately converted into a mere chose in action, which is incapable of running with the land. The rule seems to be the same, both here and in England, that the breach extinguishes the covenant and renders it incapable of running with the land; but the difference is in its application -- in determining under what circumstances the breach is to be considered as having this effect; the English courts holding that the breach of the covenant of seizin is not final and complete until the right of substantial recovery exists, while in most of the United States this effect is supposed to result from the formal breach, without any regard to the question of damage.
      In the English case of Kingdon v. Nottle, before referred to, where the possession passed with the deed, Lord Ellenborough remarked that "here the covenant passes with the land to the devisee, and has been broken in the time of the devisee; for, so long as the defendant has not a good title, there is a continuing breach, and it is not like a covenant to do an act of solitary performance, but is in the nature of a covenant to do a thing toties quoties, as the exigency of the case may require. Here, according to the letter, there has been a breach in the testator's lifetime; but, according to the spirit, the substantial breach is in the time of the devisee, for she has thereby got the fruit of the covenant in not being able to dispose of the estate." These observations were severely criticized in Mitchell v. Warner, (5 Conn. 497,) where it was said by the Chief Justice, "I affirm that the novel idea attending the breach in the testator's lifetime, by calling it a continuing breach, is an ingenious suggestion, but of no substantial import. Every breach of contract is a continuing one until it is in some manner healed; but the great question is, to whom does it continue as a breach? The only answer is to the person who had the title to the contract when it was first broken. It remains as it was, a breach to the same person who first had a cause of action upon it. If it be any thing more, it is not a continuing breach, but a new existence. In the next place, I assert that it is like a covenant to do an act of solitary performance; and for this plain reason, that it is in its nature a covenant for a solitary act, and not for a successive one. It has no analogy to a covenant to do a future act at different times, which may undergo repeated breaches. It can not be partly broken and partly sound, but the grantor is seized or not seized, and therefore the covenant is inviolate or violated wholly. I therefore conclude that the judges pronouncing it would have been of an opinion different from the one expressed, had they recognized the principle, here well established, that the breach of the covenant of seizin is in its nature total, and the measure of damages the whole consideration paid for the land."
      It is thus seen that the real point of difference is, that in England the covenant of seizin is, under some circumstances, a mere covenant of indemnity; but in most of the United States, it is always a present covenant, which, if ever broken, must be broken as soon as made, and upon which, of course, only one recovery can be had, the right to which accrues as soon as the covenant is entered into.
      The true question would then seem to be, at what time the right of substantial recovery accrues; whether at the moment of the delivery of the deed; or, is it postponed under any circumstances until the actual damage is sustained? It would seem quite impossible to hold, as we were asked to do in a case before us at the present term, that the cause of action accrues immediately, so as to set the statute of limitations in motion against the party, if we are to hold that during the whole period of its running, the party could not have recovered any thing more than nominal damages; and it would seem quite unreasonable to say that the party could not have a real recovery upon the mere formal breach, because no actual damage has resulted to him from the want of title, and yet afterwards to allow him to recover not on account of any damage that had accrued to himself, but in respect to the loss that had fallen upon his grantee.
      Our course of decision must, if possible, be such as to avoid these difficulties. In Collier v. Gamble, (10 Mo. 466,) the covenant was created by the statute, and the land had passed and been enjoyed according to the deed, and the breach complained of was a paramount title in a stranger, that had not yet been either asserted or extinguished. In the opinion of the court, it is remarked that "the existence of a paramount title, whether it has been asserted or not, is a breach of the statutory covenant; and if for such breach the grantee is permitted to recover the consideration money and interest, he may get both the purchase money and retain possession of the land under a title which is defeasible, but which may in fact never be defeated. In such cases, the reasonable rule is to recover nominal damages only, until the estate conveyed is defeated or the right to defeat it has been extinguished. This avoids the manifest injustice of permitting the plaintiff to recover the value of the land, and at the same time retain possession under a title which may never be disturbed, or the defects of which may be remedied by the payment of an inconsiderable sum. It is the rule which prevails in the construction of covenants against encumbrances, and our statutory covenant of seizin is, in fact, a covenant against encumbrances as well as of seizin." And the judgment was, that, under the circumstances of the case, the party was entitled to a nominal recovery only; and, although it was also decided that the covenant did not, in reference to the breach, run with the land, so as to pass the benefit of it to the grantee of the covenantee, yet we may remark that the suit for the use of the last purchaser was in the name of the first grantee, under an express assignment of the right of action; and so the result of the decision, as to the substantial rights of the parties, is not inconsistent with any we shall hold in the present case. The same doctrine, in reference to the recovery being nominal, seems to have been applied under similar circumstances, not only in the states to which we have already referred, but also in New York, in Maine, and Vermont. The effect of these decisions, we think, is to convert the covenant of seizin, under such circumstances, substantially into a covenant of indemnity against the damage that may result from the want of lawful title; and if so, it leaves the capacity of the covenant to run with the land untouched, until the damage has actually resulted to the party. This is the view taken by the courts in Ohio, and, accordingly, in Backus' administrator v. McCoy, (3 Ohio 211,) the judge, who declared the opinion of the court, laid down the doctrine that "when the heir or assignee acquires any interest in the land, however small, by even an imperfect or defective title, he shall be entitled to the benefit of all those covenants that concern the realty; and when he has been evicted by permanent title, he is the party damnified by non-performance of the grantor's covenants, and for such may sustain an action. This seems to be reasonable in itself, as well as in accordance with the terms of the covenant. By considering the covenant of seizin as a real covenant attendant upon the inheritance, it will form part of every grantee's security, and make that which otherwise must be either a dead letter or a means of injustice, a most useful and beneficial covenant -- a dead letter, when an intermediate conveyance has taken place between the making of the covenant and the discovery of defect of title, and the covenantee refuses to bring suit -- a means of injustice, when, after the covenantee has sold and conveyed without covenants, he brings and sustains an action on the ground that the covenant was broken the moment it was entered into, and could not, therefore, be assigned. When lands are granted in fee by such a conveyance as will pass a fee, and the grantor covenants that he is seized in fee, we can perceive no objection, legal or equitable, to this covenant, as well as the covenant of warranty, passing with the land, so long as the purchaser and the successive grantees under him remain in the undisturbed possession and enjoyment of the land;" and it was again reasserted, many years afterwards, in the recent case of Devore v. Sunderland (17 Ohio 52). We are disposed to take a similar view of our statute covenant. It proceeded, no doubt, from an instinctive feeling of the moral propriety of requiring a party, who sells land, and not merely his own interest in it, whatever that may be, and conveys it by words of transfer appropriated to such a transaction, to secure to the purchaser, and those who succeed him in his rights, the enjoyment of the property sold, and to indemnify them, if it should be lost, by reason of any defect of title. This construction, we think, will best promote the object the legislature had in view, and subserve the purposes of justice in transactions of this kind; and we may remark here, historically, that the state of Maine, in the recent revision of her laws, has expressly provided that the right of action upon a covenant of seizin shall vest in the assignee of the land, so as to enable him to sue and recover in his own right after an eviction by a title paramount. When, therefore, a defeasible title, or the possession without any title, has passed under the deed, we shall consider the statute obligation in respect to the title rather as one of indemnity, which, running with the land until the damage is sustained, inures to the benefit of the party on whom the loss falls. The general doctrine of the old law, as to the real warranty, that when no estate passes to which the warranty can be annexed, the benefit of it does not run to a subsequent assignee, admitting it to be applicable to the modern covenants of title, is obviated in cases like the present by the American decisions, that a conveyance by a grantor in possession under a claim of title passes an estate to the grantee sufficient to carry the covenants to any subsequent assignee.
      We proceed now to apply these principles to the case before us. The deed under which Desire, the original grantor, derived his title, was ineffectual to pass the fee, on account of the defect in the certificate of acknowledgment, as has been again decided at the present term; but as the actual possession went along with the deed, the covenant attached itself to the land and ran with it, until the paramount title was discovered and asserted. The covenant accordingly passed under the sheriff's conveyance to Dorsett, not as an independent subject of sale, but as an incident to the possession and apparent ownership of the land, upon the same principle that it would have passed had the sale and transfer been made by the owner himself. When paramount title was asserted, the party upon whom the loss fell became entitled to an action on the covenant for the damage he had sustained. The amount of this damage, however, is not admitted in the agreed case, nor do we think there are sufficient facts in it from which we can ascertain the amount as a matter of law.
      On a covenant of warranty or seizin, where the transaction remains between the original parties, the measure of damage is the value of the land at the time of the sale, as fixed by the parties themselves in the price given and received. When, however, the original grantee has sold the land to another, and the second purchaser has been evicted, the damage he has sustained is the value of the land at the time of his purchase, and his right of recovery against the first grantor upon the original covenant must, of course, be limited to his actual loss, although it can not exceed the liability of the first vendor to his immediate grantee. These are our present views upon this subject; but as the question as to the amount of the damages has not been argued, and as the judgment must be reversed, what is said upon that subject need not be considered as concluding us in any subsequent investigation of the case. It is admitted that upon this covenant it is not necessary for the party to show an eviction, but then he must show an outstanding paramount title which has resulted in some damage to himself; and if he insists that he has extinguished this title, and seeks to recover the cost of it, he must show affirmatively that the price paid was reasonable; and whether this were so or not depends on the value of the lot at the time of the compromise, and not upon what it was worth either when Mrs. Duncan purchased, or when it was subsequently sold at sheriff's sale. Indeed it may be, for aught we know, that the whole lot, at the time of the compromise, was worth very little more than twice the sum then paid for half of it. If, however, it were in fact worth the five hundred, and one half the purchase money paid by Dorsett, then the price paid was reasonable, and he and those claiming his rights are entitled, as we now think, to recover these two sums; but whether he will be entitled to interest upon the half of his purchase money, depends upon circumstances not now disclosed. The judgment is accordingly reversed, and the cause remanded; Judge Ryland concurring.

Missouri Supreme Court Historical Database
            Supreme Court Case Files; Contributor Appellant Richard Lesure, Respondent Thomas O. Duncan, Appellant Ephraim Bliss, filed 1847, St. Louis Co., Civil proceeding, debt for work, labor, materials, goods, merchandise; Identifier Old Box Number 48, Old Folder Number 36, Location 16A/4/5, Box 57, Folder 7; Courtesy of the Missouri State Archives.

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      St. Louis County MO Courts
      VINCENT (a man of color,) v. DUNCAN; Supreme Court of Missouri, St. Louis District; 2 Mo. 214; September, 1830, Decided.
      RALPH (a man of color) v. DUNCAN; Supreme Court of Missouri, St. Louis District; 3 Mo. 194; May, 1833, Decided.
      GORDON v. DUNCAN; Supreme Court of Missouri, St. Louis District; 3 Mo. 385; June, 1834, Decided.

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      BERNARDER v. LANGHAM; Supreme Court of Missouri, Third Judicial District; 7 Mo. 476; May, 1842, Decided.
      OTT v. SOULARD; Supreme Court of Missouri; 9 Mo. 581; October, 1845, Decided.

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      EVANS & RIEHL vs. LABADDIE; Supreme Court of Missouri; 10 Mo. 425; March, 1847, Decided.
      JACOB KISSELL, Plaintiff in error, v. THE BOARD OF THE PRESIDENT AND DIRECTORS OF THE ST. LOUIS PUBLIC SCHOOLS; Supreme Court of the United States; 59 U.S. 19; 15 L. Ed. 324; 18 HOW 19; January 23, 1856, Decided; December 1855 Term.
      BRADDOCK JONES, Pltff. in Er., v. JAMES G. SOULARD; Supreme Court of the United States; 65 U.S. 41; 16 L. Ed. 604; 24 HOW 41; January 7, 1861, Decided; December 1860 Term.

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      GEORGE EBERLE v. THE BOARD OF PRESIDENT AND DIRECTORS OF THE ST. LOUIS PUBLIC SCHOOLS; Supreme Court of Missouri; 11 Mo. 247; March, 1848, Decided.

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      CHAUVIN et al., Plaintiffs in Error, vs. WAGNER & DORSETT, Defendants in Error; Supreme Court of Missouri, St. Louis; 18 Mo. 531; October, 1853, Decided.
      THOMAS B. DUNCAN, Respondent, v. LORENZ FRANK et al., Appellants; Court of Appeals of Missouri, St. Louis; 8 Mo. App. 286; February 3, 1880, Decided.
      MICHAEL JODD et al., Respondents, v. THOMAS B. DUNCAN et al., Appellants; Court of Appeals of Missouri, St. Louis; 9 Mo. App. 417; December 7, 1880, Decided.

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