Davidson v. Cox

Decision Date19 March 1880
Citation4 N.W. 1035,10 Neb. 150
PartiesSAMUEL P. DAVIDSON, PLAINTIFF IN ERROR, v. JOHN A. COX, DEFENDANT IN ERROR
CourtNebraska Supreme Court

ERROR to Johnson county district court. Action to recover damages for breach of the covenants of warranty in a deed. Plaintiff alleged that on the twenty-first day of April, 1876 defendant Cox conveyed the land described in the petition to one Richards, by a warranty deed, containing covenants of title, whereby said Cox covenanted with said Richards "that he held said premises by a good and perfect title that he had good right and lawful authority to sell and convey the same, that they were free and clear of all liens and incumbrances whatsoever, and that he would warrant and defend said premises against the lawful claims of all persons whomsoever;" that afterwards, to-wit: on the twenty-first day of April, 1876, said Richards conveyed and mortgaged to plaintiff Davidson said premises, by her mortgage deed of that date, given to secure the payment of one note, payable to said Davidson, of same date, for the sum of forty dollars, bearing twelve per cent interest from date and providing for an attorney's fee of ten per cent, if collected by law. Said mortgage deed contained covenants of warranty, whereby said Richards covenanted with said Davidson, "that she then owned said premises in fee simple, and would warrant and defend the same against the claims of all persons whomsoever." Both said deed and said mortgage were duly delivered, and were duly filed and recorded on the twenty-second day of April, 1876. The petition further alleged that, notwithstanding the covenants of warranty in said deed and mortgage, there were upon and against said land, prior and superior to said deed from Cox to Richards, certain mortgages, given to secure large sums of money, to P. D. Cheney, and others; and afterwards, on the sixteenth day of October, 1877, said mortgages were foreclosed, and said premises ordered to be sold, under decree of court, and proceeds applied in satisfaction of said prior mortgages first, and if any balance remained, it was to be applied in payment of the said mortgage debt due the plaintiff. And in said decree of foreclosure said mortgages to Cheney and others were declared to be prior, superior, and better than said mortgage to plaintiff; that afterwards to-wit: on the seventh day of April, 1879, in pursuance of said decree, said premises were sold, and the entire proceeds of such sale were consumed in payment of said prior mortgages, and no part of same applied in payment of said plaintiff's mortgage, which still remains entirely unpaid; that afterwards, at the April term, 1879, of said district court, said sale was confirmed, and sheriff ordered to make deed, conveying said premises to the purchaser; and afterwards, in pursuance of the order of said court, said purchaser received, and has ever since held possession of said premises; that plaintiff's security has entirely failed; that said Richards is insolvent, and the whole of said debt remains unpaid; and plaintiff asked judgment against Cox for forty dollars, and interest thereon from April 21, 1876, his damage sustained by reason of the breach of said covenants of warranty.

A demurrer...

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