Harrison v. Palo Alto Cnty.

Decision Date21 January 1898
PartiesHARRISON v. PALO ALTO COUNTY.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Palo Alto county; W. B. Quarton, Judge.

Action at law to recover damages for failure of title to certain land deeded by defendant to plaintiff in settlement of a claim held by him; to recover compensation for earth and gravel taken from plaintiff's land, and used by the county in building approaches to its bridges; for trespass upon his land; and for taking certain lands for use as a public highway without compensation. The case was tried as in equity, resulting in a judgment for plaintiff in the sum of $1,659.85. The court also issued an injunction restraining defendant from committing further trespasses upon the plaintiff's lands, but refused to grant an injunction restraining the county from using certain land as a highway. The county alone appeals. Modified and affirmed.John Menzies, Co. Atty., and Soper, Allen & Morling, for appellant.

T. W. Harrison (pro se), McCarty & Linderman, and George E. Clarke, for appellee.

DEEMER, C. J.

After the case was tried in the lower court, Soper, Allen & Morling, attorneys, entered into a contract with the county by which they agreed to present the case upon appeal to this court, for a contingent fee. Appellee insists that, as they had an interest in the outcome of the suit, they should have been served with notice of appeal. That this firm of attorneys have the case on a contingent fee is conceded, but it does not follow that they should be served with notice of appeal. The notice is to be served upon the adverse party. The attorneys are not parties, and, had they been assignees, it was not necessary to serve notice of appeal upon them. Littleton Sav. Bank v. Osceola Land Co., 76 Iowa, 660, 39 N. W. 201.

The case was determined in May, 1896; and the notice of appeal (which was in the usual form), among other things, recited that the appeal would come on for hearing “at the January term of the supreme court, * * * commencing on the third Tuesday of January, 1896.” This notice is said to be so defective as to amount to no notice. The law fixes the term at which a cause shall stand for hearing in this court. Code 1873, §§ 3180-3182. And the fact that the notice does not name the term, or that it erroneously fixes the time of hearing, is of no consequence. Geyer v. Douglass, 85 Iowa, 96, 52 N. W. 111;Mickley v. Tomlinson, 79 Iowa, 385, 41 N. W. 311, and 44 N. W. 684. The statute with reference to the notice does not require that it name the term at which the appeal will be heard. See Code 1873, § 3178. If the notice does so, the words used are to be regarded as surplusage, and do not affect the validity of the notice.

Appellee further contends that the appeal has not been perfected, for the reason that the clerk's fees have not been paid or secured. It appears, however, that the clerk expressly waived this requirement. It is argued, however, that he cannot make such waiver. We think he may. But, whether this is true or not, the appeal should not be dismissed, for the reason that the clerk has performed all the duties required of him, and has certified the transcript of the record to this court. This is sufficient. See Fairburn v. Goldsmith, 56 Iowa, 348, 9 N. W. 300;Searles v. Lux (Iowa) 52 N. W. 327; Bruner v. Wade, Id. 558; Slone v. Berlin, 88 Iowa, 205, 55 N. W. 341. See, also, Simplot v. City of Dubuque, 49 Iowa, 630.

It is also contended that the appeal should be dismissed because no errors are assigned. The action was undoubtedly at law, but the parties treated it in the lower court as if in equity, and it will be so treated here. Lemert v. McKibben, 91 Iowa, 349, 59 N. W. 207;Bryant v. Fink, 75 Iowa, 518, 39 N. W. 820;Spring Co. v. Smith, 90 Iowa, 335, 57 N. W. 853.

Further claim is made that the abstract, on its face, shows that it does not contain all the evidence offered upon the trial. There is a certificate in the abstract that it contains all, and the appellant has filed an amendment covering the alleged defects, and reaffirms the statement made in the original abstract. Appellee has also filed an amended abstract, setting forth some omissions and corrections. With these additions, the case seems to be properly before us. Seekell v. Norman, 76 Iowa, 234, 40 N. W. 726;State v. O'Day, 68 Iowa, 213, 26 N. W. 81.

With these preliminaries disposed of, we now come to the merits. It appears that plaintiff was engaged in protracted litigation with the defendant over certain swamp-land contracts. One of these cases reached this court. See 68 Iowa, 85, 26 N. W. 16. While this litigation was pending, a contract of settlement was entered into, which lies at the basis of this controversy. By the terms of this settlement the defendant county was to make a warranty deed to the plaintiff for the lands in dispute, as well as other property; amounting in all to 840 acres of land, and $1,020 in money. The lands were all supposed to be swamp lands, but the 40 acres in controversy was high, dry land, and the same was never patented to the county. The warranty deed agreed upon was executed, and plaintiff seeks to recover upon the covenants, or because the title has failed, and says that he is entitled to the value of the land, which he claims was agreed to be $800 at the time the contract of settlement was entered into. He further says that he was defrauded by the county, and “that in giving said deed, and representing that the said Palo Alto county had a perfect title thereto, the plaintiff was deceived and defrauded.”

It is practically agreed that the county had no title when the conveyance was made, and the first question which arises is, is it liable upon its covenants of warranty? Municipal corporations have and can exercise only such powers as are expressly granted to them by law, and such incidental ones as are necessary to make those powers available, and are essential to effectuate the purposes of the corporation; and those powers are strictly construed. Becker v. Waterworks, 79 Iowa, 422, 44 N. W. 694;Webster Co. v. Taylor, 19 Iowa, 117;Baker v. Washington Co., 26 Iowa, 154. Swamp lands passed to the different counties of the state, and section 956 of the revision provided: “That no swamp or overflowed lands granted to the state, and situated in the present unorganized counties, shall be sold or disposed of till the title to said lands shall be perfected in the state, whereupon the titles to said lands shall be transferred to said counties where they are situated.” After the title to such land was perfected in the state, the county had authority to sell and convey the same. But there is no statute giving it power to execute a deed with covenants of warranty. If it had such authority, then it is in virtue of its implied power. Such power is not necessary to make the conveyance available. Nor is it essential to the purposes and objects of the corporation. A conveyance or assurance is good and perfect without either a warranty or a personal covenant. And, as the powers granted to or implied of a municipal corporation are only such as are necessary to make those expressly granted available, it seems quite clear that it has no authority to execute a deed with covenants of warranty. See, as sustaining this conclusion to some extent, at least, Carter v. City of Dubuque, 35 Iowa, 416;Findla v. City and County of San Francisco, 13 Cal. 534;Brockman v. City of Creston, 79 Iowa, 589, 44 N. W. 822;Stidger v. City of Red Oak, 64 Iowa, 466, 20 N. W. 762; Jones, Real Prop. §§ 830, 831; Hamilton v. City of Shelbyville (Ind. App.) 33 N. E. 1007. Again, the title to the land which the county attempted to convey had not been perfected in the state, and was not in fact swamp, but high, dry, land. One of the witnesses says, “It was of the highest hills in the county.” In the case of Findla v. City and County of San Francisco, supra, it is held that the town was authorized to make a conveyance of its own land, but was not bound by a conveyance (containing covenants) of a lot belonging to a stranger. See, also, Sang v. City of Duluth (Minn.) 59 N. W. 878. We are well satisfied that the defendant had no power or authority to execute a deed with covenants. Appellee insists, however, that, if the county had no such power, yet, as it received the benefits of the contract, it is liable to him as for money had and received. It seems to be settled that in the absence of a warranty, or of fraud inducing the conveyance, there is no liability of the grantor for failure of title. If the deed be delivered to the purchaser, he has received the entire consideration for which he has bargained, and mere failure of title is not sufficient to support a plea for money had and received. Nelson v. Hamilton Co. (Iowa) 71 N. W....

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4 cases
  • Gade v. City of Waverly
    • United States
    • Iowa Supreme Court
    • 8 Marzo 1960
    ...is not empowered to so convey real estate. This would not furnish appellants grounds to invalidate the transaction. Harrison v. Palo Alto County, 104 Iowa 383, 73 N.W. 872. In any event the purchaser has agreed to accept another form of Affirmed. All Justices concur. ...
  • Wigton v. Wigton
    • United States
    • Colorado Supreme Court
    • 5 Noviembre 1917
    ...money was actually paid on June 13, 1910. These facts constitute a sufficient compliance with the statute.' And in Harrison v. Palo Alto County, 104 Iowa 383, 73 N.W. 872, court said: 'Appellee further contends that the appeal has not been perfected, for the reason that the clerk's fees hav......
  • Harrison v. Palo Alto County
    • United States
    • Iowa Supreme Court
    • 21 Enero 1898
  • Medat v. Mayor
    • United States
    • New Jersey Supreme Court
    • 4 Marzo 1901
    ...an implied power to make such covenants in the deed does not arise. This view finds support in the following cases: Harrison v. Palo Alto Co., 104 Iowa, 383, 73 N. W. 872. Hyde v. Supervisors, 43 Wis. 129, and cases It is further contended that the defendant is estopped from raising the def......

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