Wellman v. Dismukes & Glascock
Supreme Court of Missouri
Appeal from St. Louis Circuit Court. I. Tbe defense of failure of consideration cannot be set up, as no eviction was shown, and, therefore, no breach of the covenant. (Hoy et al. v. Taliaferro, 8 Sm.' & M. 727, 241; Dennis v. Heath, 11 Sm. & M. 206 ; Rawle, 645, Am. note 1. Even if there was a paramount title in Balthrope, which is not shown, unless there was an adverse possession under it, this is not equivalent to an eviction.
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Appeal from St. Louis Circuit Court. I. Tbe defense of failure of consideration cannot be set up, as no eviction was shown, and, therefore, no breach of the covenant. (Hoy et al. v. Taliaferro, 8 Sm.' & M. 727, 241; Dennis v. Heath, 11 Sm. & M. 206 ; Rawle, 645, Am. note 1. Even if there was a paramount title in Balthrope, which is not shown, unless there was an adverse possession under it, this is not equivalent to an eviction. (11 Sm. & M. supra, p. 218 ; Gust v. Hodges, 2 Dev. 200.) The covenant entered into by Wellman was a covenant of warranty; there was no covenant of seizin; the title…
1Opinion of the Court
Waqner,, Judge,
delivered the opinion of the court.
Plaintiff, as administrator of Harvey Wellman, deceased, instituted suit in the Ralls county Circuit Court against the defendant, Dismukes, on two promissory notes made by Dismukes and payable to plaintiff’s intestate. It appears from the petition that the plaintiff’s intestate sold to the defendant, Dismukes, certain tracts of land described therein, and bound himself by title bond to convey said lands to Dismukes on the payment of the purchase money. The price agreed upon for the land was four thousand dollars, to be paid in three equal…
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