
    Hazelett v. Woodruff, Appellant.
    Division One,
    June 14, 1899.
    1. Breach of Warranty in Deed: costs : attorney’s pees. Where defendant’s deed to plaintiff contained a covenant for seizin and also . the further covenant that defendant would warrant and defend the title so conveyed against all claims whatsoever, plaintiff is entitled to recover from the covenantor all costs and attorney’s fees reasonably incurred by him in defending any suit brought by other lawful claimants to the land, even though such claimants dismiss such suit before judgment, pay the court costs, and convey by deed their interest to the covenantee.
    
      2. -: deed made in another state. And where such deed is for the conveyance of lands in another State, and there is no evidence offered at the trial as to what the covenantor’s liability is under the law of such State for the breach of his warranty, the court will presume that the law of the forum is the law governing his liability. .
    
      Transferred from Kansas City Court of Appeals.
    
    Reversed and demanded (with directions).
    
    Sallee & Goodman and McCullough & Peeby for appellant.
    (1) Tbe court erred in overruling defendant’s objection to tbe introduction of evidence under tbe petition, because, admitting every allegation contained in it to be true, plaintiff could not recover. Tbe measure of damages where there is a total failure of title, thus causing an absolute breach of tbe covenant of seizin, is tbe purchase money and interest. To this may be added the costs of the action where the evicted party has given the convenantor notice. 3 Wash, on Real Prop. (3 Ed.), 419; 2, Sutherland on Damages, pp. 251-263; Dickson v. Desire, 23 Mo. 166; City of St. Louis v. Bissell, 46 Mo. 157; Hutchins v. Roundtree, 77 Mo. 500; Lambert v. Estes, 99 Mo. 608; Matheny v. Stewart, 108 Mo. 73. (2) This is unquestionably the law of this State, and as there was no evidence as to what is the law of Indiana, the court will presume it to be the same as the law of the forum, or at least the law of the forum will be the rule of decision. Elato v.. Mulhall, 72 Mo. 552; Sloan v. Torrey, 78 Mo. 623; White v. Ohanev, 20 Mo. App. 389; Hofheimer v. Losen, 24 Mo. App. 652; Bain v. Arnold, 33 Mo. App. 631; Selling v. Hebei, 1 Mo. App. 340; Clark v. Barnes, 58 Mo. App. 667. (3) The damages sued for in this action are neither the purchase money nor costs. The items in plaintiff’s claim are $50 for attorney's, fees, $10 for a fee to an abstractor for an abstract of the title, and $150 for the services of an agent in looking up the evidence. There could be no demand for the purchase money' with interest, for tbe adverse claimant released to tbe plaintiff all bis interest, and presumably paid tbe costs of tbe action commenced in Indiana, as tbe record is silent upon tbe subject. Plaintiff was not entitled to judgment, even if all tbe allegations of tbe petition were confessed, and tbe court erred in overruling tbe objection to tbe introduction of evidence. As tbe defendant was not liable at all, tbe defect was one of substance, and tbe objection should bave been sustained. Preymark v. Bread Co., 55 Mo. App. 435; "Weber v. Ins. Co., 5 Mo. App. 51. (3) Tbe petition admits that tbe plaintiff was not evicted by tbe alleged paramount title. Not only tbis, but no judgment was taken against bim. In fact tbe party wbo beld tbis title not only dismissed bis suit, but actually conveyed to tbis plaintiff all bis interest in tbe land, without plaintiff being required to pay anything to extinguish said claim. It is clear, therefore, that plaintiff could not, in any event, be entitled to more than nominal damages. Cock-rell v. Proctor, 65 Mo. 1; Collier v. Gamble, 10 Mo. 467; Bircker v. Watkins, 13 Mo. 521; Dickson v. Desire’s Admr., 23 Mo. 151; Murphy v. Price, 48 Mo. 247; Lewis v. West, 23 Mo. App. 503; Holladay v. Menifee, 30 Mo. App. 207; 4 Am. and Eng. Ency. of Law, 480. (4) Indiana is as to Missouri courts a foreign State. Buckner v. Finley, 2 Pet. 59. (5) Before tbe laws of a sister State can be introduced in evidence they must be pleaded. Hanley v. Donahue, 116 U. S. 1; Garrett v. Conklin, 52 Mo. App. 654; Clark v. Barnes, 58 Mo. App. 667.
    D. J. & W. L. HeastoN for respondent.
    (1) Where tbe grantor in a warranty deed is notified of suit by adverse claimant having paramount title it is bis duty to defend, and upon bis failure tbe grantee may defend and grantor will be liable for reasonable costs including attorney’s fees. Crisfield v. Stoor, 36 Md. 129; Ryerson v. Chapman, 66 Me. 557; Lane v. Fury,'31 Ob. St. 574; Harding v. Larkin, 41 Ill. 413; Keeler v. Wood, 30 Yt. 242; Pitkin y. Leavitt, 13 Yt. 379; Kennison y. Taylor, 18 N. H. 220; Staats v. Ten Eyck, 3 Caines 111; 2 Sntb. on Damages (1 Ed.), 301, 306 and 308; McAlpin v. Woodruff, 11 Ob. St. 120; 2 Devlin on Deeds, 934; SedgwickDam. (4 Ed.), 186; Hutcbins v.' Round-tree,. 77 Mo. 508; Matbeny v. Stewart, 108 Mo. 79; Rawle on Oov. Title (3 Ed.), 98-101; Meservey v. Snell, 62 N. W. 767; 4 Am. and Eng. Ency. of Law, 480; 28 Am. and Eng. Ency. Law, 850; Rowland v. Sbelton, 25 Ala. 217; Pitcher v, Livingston, 4 Johns. 1; Bennett v. Jenkins, 13 Johns. 50; Baldwin v. Munn, 2 Wend. 399; Dimmock v. Lockwood, 10 Wend. 142; 2 Snth., Dam. (1 Ed.), 221; Walker v. Deaver, 5 Mo. App. 139. (2) The sections of the Indiana statute were properly admitted in evidence. Where the action is founded upon the law of another state, or a right or penalty given by such statute, then such statute should be pleaded; but where the foreign law is not. the basis of the action, but merely an evidential part thereof, it may be proved without being pleaded. Clark v. Barnes, 58 Mo. App. 671; Banchor v. Gregory, 9 Mo. App. 102; Charlotte v. Chouteau, 33 Mo. 194; Flato v. Mulhall, 72 Mo. 522; Bain v. Arnold, 33 Mo. App. 631; Meyer y. McCabe, 73 Mo. 236. (3) Indiana having been part of the Northwestern Territory this court will presume the common law is in force there without further proof. The common law of England is also directly adopted in Indiana by statute. R. S. Indiana 1881, sec. 236; Stevenson v. Cloud, 5 Blackf. 92; Railroad v. Shriver, 6 Ind. 141; Dawson v. Coffman, 28 Ind. 220; Grimes v. Harmon, 35 Ind. 198; Hofheimer v. Losen, 20 Mo. App. 658.
   BRACE, P. J.

This is an action for damages for breach of a covenant of seizin and warranty, in a deed to real estate, in which the plaintiff obtained judgment in the trial court for the sum of eighty-five dollars and costs, and the defendant took an appeal to the Kansas City Court of Appeals, where the judgment of the circuit was reversed; but one of the judges dissenting’, and being of tbe opinion tbat tbe decision was in conflict with prior decisions of tbe Supreme Court, tbe case was certified to this court for final determination. Tbe case was disposed of in tbe court of appeals on tbe following opinion by Smith, P. J.: ■

“Tbe case in band may be stated tó be in substance this: While plaintiff and defendant were both residents of tbe State of Indiana, tbe defendant by deed conveyed to tbe plaintiff certain lands in tbat State in wbieb deed tbe following covenants were contained, that is to say, That tbe title so conveyed is clear, free and unincumbered; tbat tbe grantor is lawfully seized of tbe premises as a sure and indefeasible estate of inheritance in fee simple; and tbat tbe grantor will warrant and defend tbe same against all claims whatsoever.’
“It is conceded tbat at tbe time of tbe execution of said deed tbe defendant bad title to only an undivided two-thirds of said land, and tbat bis two daughters and son bad title to tbe other one-third. It is further conceded tbat shortly after tbe execution of said deed by defendant bis two daughters conveyed them interest in said land to tbe son, who thereupon commenced a suit in partition against tbe plaintiff herein.
“It is not disputed in tbe evidence tbat tbe plaintiff gave tbe defendant timely notice of tbe commencement of tbe said partition suit and requested him to defend tbe same and tbat this tbe defendant refused to do. Tbe plaintiff then employed a firm of reputable lawyers, who appeared for him in said partition case, and filed an answer. Nor is it disputed tbat tbe services performed by tbe plaintiff’s lawyers in and about defending tbe partition suit were reasonably worth tbe amount he paid them therefor.
“It' appears tbat after tbe defendant bad refused to defend' said partition suit and tbe plaintiff bad taken such steps in tbat direction as be bad been advised by bis attorney were necessary for him to take, tbe defendant’s son executed and delivered to plaintiff a deed conveying to him tbe outstanding title to one-third interest in tbe said land by wbicb said conveyance tbe plaintiff’s title became perfect. Tbe defendant’s son then dismissed tbe partition suit, paying tbe court cost tbat bad accrued therein.
“Tbe plaintiff brought this action on tbe covenants contained in tbe said deed made by defendant to plaintiff and here-inbefore set forth, to recover tbe amount laid out and expended by him for fees paid bis attorneys in said partition suit and for tbe cost of an abstract of title to said land. Tbe plaintiff bad judgment in tbe trial court and tbe defendant appealed.
“Tbe defendant’s deed to tbe plaintiff as has been seen contained not only a covenant for seizin, but tbe further covenant that defendant would warrant and defend tbe title so conveyed against all claims whatsoever. If at tbe time of tbe execution of tbe deed tbe defendant was not seized, then no title passed and tbe covenant was broken when made. Tbe plaintiff in tbe partition suit asserted a paramount adverse title to an undivided third interest in tbe land and if tbe defendant herein, after be bad been notified of tbe commencement of tbe said partition suit, refused to defend tbe same, then there was a breach of tbe covenant for quiet enjoyment as well. Eor these breaches of tbe covenants of tbe warranty tbe plaintiff was entitled to recover of tbe defendant in an appropriate action such damages as were given by tbe lex loei oontraeUis.
“There is no evidence contained in tbe record of tbe laws of tbe State of Indiana, relating to tbe measure of damages where there is a breach of one or both of the covenants just mentioned. There is no proof of tbe statutes or tbe decisions of tbat State relating to tbe subject disclosed by tbe record. We can not take judicial notice of tbe statutes and decisions of sister States. Where a cause of action or defense interposed is based upon tbe law of another State tbat law must be both pleaded and proved, but when it is not the basis of the action or defense and is merely an evidential part thereof, it may be proved without being pleaded. [Clark v. Barnes, 58 Mo. App. 667.]
“Tbe common, law was in force in tbe territory of Indiana at tbe time of its admission into tbe Union as a State. It is only in respect of those States wbicb were never subject to> tbe common law that, in tbe absence of proof as to tbe lew loot eon-traetrns, the court will apply tbe statute laws of the forma. [Flato v. Mulhall, 72 Mo. 522; White v. Chaney, 20 Mo. App. 389; Barhydt & Co. v. Alexander & Co., 59 Mo. App. 188; Wyeth Hardware Co. v. Lang, 54 Mo. App. 147.] On common law questions tbe presumption is, that tbe common law of another State is tbe same as that of our own State. [White v. Chaney, supra.] As tbe only question presented by tbe record for decision is that of tbe measure of damages, we flunk it is obvious from tbe principles just adverted to, that it must be resolved in tbe light of tbe common law.
“ ‘The weight of American authority’ says Judge Scott, in Lawless v. Collier, 19 Mo. 480, ‘has determined that tbe covenant for seizin is broken, if broken at all, as soon as it is made, and thereby an immediate right of action accrues to him who has received it.... Tbe damages to be recovered are measured by tbe actual loss at that time sustained.’ Tbe authorities are agreed that where this covenant is broken tbe convenantee is entitled to recover no more than nominal damages [Collier v. Gamble, 10 Mo. 467; Bircher v. Watkins, 13 Mo. 522], until be bad bought in tbe adverse right or has been actually ‘deprived of tbe whole subject of bis bargain,’ in either of wbicb latter events be has tbe right to recover substantial damages. [Holladay v. Menifee, 30 Mo. App. 207; Lawless v. Collier, supra; Henderson v. Henderson, 13 Mo. 151; Walker v. Deaver, 79 Mo. 664; Dickson v. Desire’s Admr., 23 Mo. l. c. 166; Magwire v. Riggin, 44 Mo. 512; St. Louis v. Bissell, 46 Mo. 157; Hutchins v. Roundtree, 77 Mo. 500; Lambert v. Estes, 99 Mo. loc. cit. 608; Matheny v. Stewart, 108 Mo. 73.] And whatever may be tbe technical or tbe practical rule as to tbe measure of damages upon total breach of tbe covenant of seizin, it is well settled that upon a partial breach a purchaser may and it seems must recover pro ta/nto. [Rawle on Covenants for Title .(5 Ed.), sec. 186, and cases cited in note 3; Guthrie v. Pugsley, 12 Johns. (N. Y.) 126; Collier v. Gamble, supra.]
“The measure of damages upon breach of covenant of seizin and the right to convey is as a general rule the purchase money, interest and costs. [Collier v. Gamble, supra; Bircher v. Watkins, supra; Lawless v. Collier, supra; Rawle on Covenants for Title (5 Ed.), secs. 184, 186; Overhiser v. McCollister, 10 Ind. 41.] No case that we have seen has extended the rule beyond this.
“It would seem that the damages claimed, by plaintiff are not allowed for breach of the covenant of seizure.
“But is the plaintiff entitled to recover the damages claimed for a breach of the covenants to 'warrant and defend the title against all claims whatever f
“ 'Littleton tells us that although the words “warrant and forever defend” were those generally inserted in a warranty, yet the word “defend” added no additional force, as it seemeth that it hath not the effect of warrantee, nor comprehendeth in it the cause of warrantee.’ [Coke on Litt., sec. 133.]
“In Eawle on Covenants (5 Ed.), see. 116, it is stated that: 'Apart from the word “warrant,” the covenant would seem to be no more than an engagement that it should bar the covenantor and his heirs from ever claiming the estate, and that he and they should undertake to defend it when assailed by a paramount title. The latter .was, indeed, one of the consequences of a warranty, and its effect in this respect has been continued, though with modifications, down to this day.’ And the same author further along, sec. 117, states that 'it is settled in most if not all of the United States, that in general, upon suit being brought upon a paramount claim against one who is entitled to the benefit of any of the covenants of warranty, be can, by giving notice of tbe action to tbe party bound by tbe covenants and requiring him to defend it, relieve bimself from tbe burden of being obliged afterwards to prove, in an action on tbe covenants, tbe validity of tbe title of tbe adverse claimant.’
“Tbe covenant of warranty or for quiet enjoyment is a. covenant of indemnification, whose object is to compensate tbe covenantee for bis actual loss at tbe time of tbe breach.
“In Eield on Damages, sec. 467, it is said that: 'The decisions on this question are somewhat conflicting and various in the different States. In several states it has recently been held, that tbe measure of damages on a breach of warranty in a deed, is tbe value of the property at tbe time of tbe conveyance, and interest thereon, together with tbe necessary costs and expenses incurred in defending tbe title, and that such costs and expenses include a reasonable counsel fee,’ citing, Robertson v. Lemon, 2 Bush. (Ky.) 301; Dalton v. Bowker, 8 Nev. 190; Keeler v. Wood, 30 Vt. 242; Rowe v. Heath, 23 Tex. 614. In Sedgwick on Damages, sec. 238, it is said that: Tn an action for breach of tbe covenants of seizin or of warranty, tbe costs and, if reasonably defended, tbe counsel fees in tbe eviction suit are recoverable,’ citing as authority for tbe statement of tbe rule a great number of English and American cases. In Sutherland on Damages (2 Ed.), sec. 983, it is said that: Tt is generally held that counsel fees reasonably incurred in maintaining or defending an action may be recovered,’ citing many cases in note d.
“It would seem that in a large number of tbe States, it is tbe rule in actions for breach of tbe covenant of warranty or which is tbe same thing, that for quiet enjoyment, to allow as part of the damages tbe reasonable fees of attorneys employed by tbe covenantee in defending tbe title conveyed by tbe deed containing the covenant, but in this State tbe rule seems to be an unbinding and inflexible one which limits tbe damages in such actions to a recovery of the purchase money, interest and costs. [Matheny v. Stewart, 108 Mo. 73; Lambert v. Estes, 99 Mo. 604; Hutchins v. Roundtree, 77 Mo. 500; Murphy v. Price, 48 Mo. 247.]
“The deed was made in contemplation of the laws of the State in which it was executed, and if we could take judicial cognizance of the laws of that State, as we can not, it would be seen that the measure of damages for breach of the covenant of seizin, as well as of that of warranty, is precisely the same as in this State. [Burton v. Reeds, 20 Ind. 87; Overhiser v. McCollister, 10 Ind. 41; Wood v. Bibbins, 58 Ind. 392; Coleman v. Lyman, 42 Ind. 289.]
“In Matheny v. Stewart, siupra, the question whether in an action for the breach of the covenant of warranty attorney’s fees expended in defending an action brought by the owner of the outstanding title to recover possession should be allowed as a part of the covenantee’s damages, was fairly presented for decision. That item of damage had been disallowed by the trial court, and its action was affirmed by the Supreme Court. It is true that it is said in disposing of the question that such fees are not allowed in the State of Mississippi where the covenant was made and the land situate, but it is also further said in the same connection that the measure of damages in such cases in this State is limited to the purchase money, interest and the court costs.
“It seems, therefore, that the rule for the measure of damages in this State is the same amount in an action for the breach of the covenant of seizin as that for the breach of the covenant of warranty; that is to say, in either case the recovery is limited to the purchase money, interest and cost.
“In the face of this procrustean rule we are constrained to declare that the trial court erred in its action refusing the defendant’s request for an instruction in the nature of a demurrer to the evidence. The judgment must accordingly be reversed.”

In Matheny v. Stewart, 108 Mo. 13, tbe plaintiff sought to recover as damages tbe value of tbe land at tbe time of tbe eviction, court costs, attorneys’ fees and necessary expenses in defense of tbe suit. Tbe contract was made in Mississippi. Tbe judgment of tbe circuit court was for tbe purchase price of tbe land and interest thereon from tbe date of eviction, and tbe judgment was affirmed. It was, therefore, of course decided, that tbe plaintiff in that case could recover neither court costs nor attorneys’'fees. But as appears from tbe opinion therein, for tbe all-sufficient reason, that tbe paramount title being simple, palpable and unambiguous, and tbe plaintiff’s grantor having notified him to make no defense. There was no merit in tbe defense of tbe title. It is true it was said, in tbe opinion, in reply to tbe argument that tbe damages should be tbe enhanced value of tbe property, that “the rule of damages for- breaches of warranty in tbe conveyance of land, in case of total failure of title, has ever been limited in this State to tbe purchase money paid with interest thereon, and costs. [Dickson v. Desire’s Admr., 23 Mo. loc. cit. 166; Hutchins v. Roundtree, 77 Mo. 500; Lambert v. Estes, 99 Mo. loc. cit. 608.] Tbe rule seems to be tbe same in Mississippi: Phipps v. Tarpley, 31 Miss. 433; Brooks v. Black, 8 So. Rep. 332; White v. Presly, 54 Miss. 313.” Having thus disposed of tbe plaintiff’s first claim, tbe learned judge then proceeds to tbe second, tbe court costs, as to which, be says; “There can be no question, we think, under a covenant as in this deed to warrant and defend tbe title, that tbe grantee should- ordinarily recover, as damages for tbe breach of such covenant, tbe legal costs reasonably and in good faith incurred in tbe assertion or defense of tbe title warranted. [3 Sedg. on Dam. (8 Ed.), sec. 982; Hutchins v. Roundtree, 77 Mo. 501.] This is tbe rule also in Mississippi, though followed with apparent reluctance. [Brooks v. Black, 8 So. Rep. 322.]” After which be proceeds, to tbe plaintiff’s third claim, for attorney’s fees, etc., as to which all that is said is: “Attorney’s fees are also allowed as damages in many of the States [Sedg. on Dam., supra], but are denied in the State of Mississippi. [Brooks v. Black, supra.] This conveyance was made in contemplation of the laws of the State in which it was made and in which the real estate was situated, and effect should be given the covenants in accordance with the construction placed upon them by the courts of that State.” After thus intimating that the charge for attorney’s fees ought not to be allowed because not allowable under the laws of Mississippi, but without making any specific ruling upon the subject, he returns to the item of costs and says: “The reasonable cost of defending the title should have been*allowed, unless that item of damage was properly excluded under some exception to the rule,” and then proceeds to state the facts, showing the folly and uselessness of making a defense of the title in that case, after notice not to defend by the grantor, taking it out of the rule that the defendant should be taxed with the costs of making it. Of course, if he could not be -charged with the costs of making the defense a fortiori, he could not be taxed with attorney’s fees for making the defense. So it was unnecessary to return to that subject again. The decision as to the costs in that case was decisive of the claim for attorney’s fees. But under the rulings of that case, the plaintiff in the case under consideration would have been allowed his legal costs, and the ruling of the court upon the facts in judgment therein would not preclude a recovery of either costs or attorney’s fees in a case like the one in hand. If that case is authority for precluding the recovery of attorney’s fees by plaintiff'herein, it is not because of the rulings upon the facts in judgment therein, but of something contained in the dicta of the opinion. As the contract in this case, as is shown in the opinion of Judge SMITH, is governed by the law of the forum, nothing that is directly said upon the subject of attorney’s fees in the opinion, is applicable. So that we are remitted for authority solely to the dictum, that “the rule of damages for breach of warranty in tbe conveyance of land in case of total failure of title has ever been limited in this State to the purchase money paid with interest thereon and costs.” Eor the purpose of determining whether “it has ever been so limited in this State” we have gone through all the cases. The first case in which the rule was announced is Tapley v. Lebeaume’s Ex’r, 1 Mo. 550, in which it was held that the true rule of damages on a breach of covenant of seizin is the purchase money, with interest, and as thus announced it was followed and reiterated as the true measure of damages for breaches of covenants of seizin and warranty through a great number of cases. [Martin v. Long, 3 Mo. 391; Colgan v. Sharp, 4 Mo. 263; Collins v. Clamorgan, Admr., 6 Mo. 170; Reese v. Smith’s Ex’r, 12 Mo. 345; Bircher v. Watkins, 13 Mo. 522; Lawless v. Collier’s Ex’r, 19 Mo. 480; Dickson v. Desire’s Adm’r, 23 Mo. 151; Tong v. Matthews, 23 Mo. 437; City of St. Louis v. Bissell, 46 Mo. 157; Murphy v. Price, 48 Mo. 247; Kirkpatrick v. Downing, 58 Mo. 32; Hutchins v. Roundtree, 77 Mo. 500.] This last case was decided in 1883. In all the preceding cases, the damages had been limited to the “purchase money and interest,” because in the facts presented for the judgment of the court in those cases that was a sufficient declaration of the rule as to the measure of damages. But in Hutchins v. Roundtree the question was first raised and presented, whether in addition thereto the plaintiff was not also entitled to recover the costs expended in defending the title warranted; and the court unhesitatingly responded: “There is no question of the right of an evicted grantee to recover such costs where he gave notice to the grantor or his legal representative of the pendency of the ejectment suit.” The fact that theretofore the damages had been limited to the purchase money and interest, was not thought in that case to preclude a recovery of legal costs in defending the title, and although the rule was again restated in the same general terms in the next case of Lambert v. Estes, 99 Mo. 604, when thereafter the case of Matheny v. Stewart, 108 Mo. 73, came on to be decided in 1891, in which the question as to the allowance of attorney’s fees as well as of costs was raised, the court unhesitatingly stated the rule as including costs, showing again that the court did not consider that that item had been precluded by the terms in which the rule had been theretofore so often and uniformly formulated, but in none of which had the mind of the court been directed to the question of the right to recover costs. So the general statement of the rule including cost, in that case, can not of itself be held to preclude a recovery for attorney’s fees, that being the first case in which the question as to the right to such recovery was first raised. So that we perceive in our decisions no “procrustean rule” that excludes the allowance of attorney’s fees as well as legal costs as necessary expenses in defending the title warranted. And as in principle no distinction can be made between the two items, and as such allowances are supported by the great Aveight of authority, and the facts of this case bring it within the principles upon which such expenses should be alloAved, we think the court of appeals erred in reversing the judgment of the circuit court. Its judgment will therefore be reversed, and the cause will be remanded to the Kansas City Court of Appeals with directions to enter judgment affirming the judgment of the circuit court.

All concur.  