St. Louis County District Court File No. C5-02-101777.
Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Halbrooks, Judge.
1. In appropriate circumstances, appellate courts can exercise their discretion to address issues not properly preserved for appeal.
2. An action for violation of a covenant in a warranty deed is timely if it is brought within the statutory period after the successful assertion of an interest in the property contrary to the interest of the covenantee.
The opinion of the court was delivered by: Toussaint, Chief Judge
On appeal from a summary judgment stating that appellant-covenantee failed to bring his action on a deed before the statute of limitations expired, covenantee argues that the district court erred in ruling that his cause of action accrued when the deed was delivered. Because covenantee brought his action within the statutory period after a third party successfully asserted an interest in the land contrary to covenantee's interest, we reverse and remand.
In June 1990, Scott Newman sold various assets to Mark Weir, including a 1/3 interest in a building. Weir's obligations to pay Newman were secured by, among other things, a second mortgage on at least part of the building, naming Weir as mortagor and Newman as mortgagee (Newman mortgage). The remaining 2/3 interest in the building was owned, 1/3 each, by Andrew Phillips and Eldon Hall. Weir, Phillips, and Hall sold the building to Lars Roth in October 1990 on a contract for deed with a one-year balloon payment. That contract for deed was later extended six months.
In January 1992, Weir wrote to Newman, stating that when Roth paid off his contract for deed in April 1992, Weir would be required to produce a satisfaction of the Newman mortgage or a release. Weir asked whether Newman would provide a satisfaction or had other suggestions for clearing title. Newman responded, stating that he would provide a partial satisfaction, and encouraged Weir to use his portion of the proceeds of Roth's balloon payment to pay off the Newman mortgage. Roth paid off the contract for deed but did not get a deed for the building, Weir did not pay off the Newman mortgage, and Newman did not provide a satisfaction of the mortgage.
In April 1992, Weir made one year's worth of payments on the Newman mortgage, but did not make another payment until 1997.
In 1995, Roth sought to refinance certain debt by, among other things, mortgaging the building. In connection with Roth's attempted mortgage, Weir examined title for the building. The title-opinion process revealed, among other things, that Roth was not the record owner of the building. The opinion stated that the building was owned by Weir, Phillips, and Hall, was subject to, among other things, the contract for deed to Roth, first and second mortgages, and a 1995 notice of mortgage foreclosure. But the title opinion did not identify which mortgage was being foreclosed.
As a result of this information, in early 1996, Weir, Phillips, and Hall, and their wives, executed a warranty deed in favor of Roth for the building. The warranty deed stated that the property was unencumbered. Apparently, the deed was never physically presented to Roth, but the bank directed Weir to have the deed recorded. Weir then attempted to contact Roth to get his social security number and to obtain the recording fee. Roth did not respond, and on ...