Bellamy v. Chambers

• Citation: 50 Neb. 146,69 N.W. 770
• Parties: BELLAMY v. CHAMBERS.
• Decision Date: 07 January 1897
• Court: Supreme Court of Nebraska

50 Neb. 146

69 N.W. 770

BELLAMY

v.CHAMBERS.

Supreme Court of Nebraska.

Jan. 7, 1897.

Syllabus by the Court.

1. “In an appeal from the county court to the district court, the cause must be tried on the same issues as were tried in the county court, unless some new matter has arisen since the trial there, such as payment, etc.” Halbert v. Rosenbalm (Neb.) 68 N. W. 622.

2. A covenant against incumbrances in a conveyance of land, is, in effect, that the premises then are free from incumbrances; and, if any incumbrances exist, the covenant is broken, and a cause of action therefor accrues in favor of the covenantee, which will be barred by limitation in five years.

Error to district court, Gosper county; Welty, Judge.

Action by Richard H. Bellamy against Jonas E. Chambers in the county court. There was a judgment for defendant, and, on appeal to the district court, the complaint was dismissed, and plaintiff brings error. Affirmed.

W. S. Morlan, for plaintiff in error.

W. B. Miller, for defendant in error.

HARRISON, J.

On July 10, 1893, the plaintiff commenced this action in the county court of Gosper county, to recover the sum of $29.91 and interest, as prayed for in his bill of particulars. The cause of action was based upon a breach of covenant against incumbrances contained in a deed of a certain described tract of land, executed and delivered by defendant to plaintiff, of date December 16, 1886, wherein there appeared a covenant by which it was warranted that, except a mortgage lien specifically stated, the premises conveyed were “free from incumbrances,” etc. The breach was stated in the bill of particulars as follows: “Said premises was not free from incumbrance at the time of the execution of said deed, but were incumbered by the taxes which had been lawfully assessed against them for the year 1886, to the amount of $20 and accrued interest. The plaintiff was compelled to remove said incumbrance, and paid $29.91 to remove the same, of all which the defendant had due notice. Said sum was paid June 27, 1890.” A trial in the county court resulted in a judgment favorable to defendant, from which an appeal to the district court was perfected on behalf of plaintiff.

In the petition filed in the appellate court there appeared the following: “The taxes assessed and levied against said land for the year 1886, amounting to the sum of $20, had not been paid, and at the time of said conveyance were a lien and incumbrance on said tract of land, and after the same became due, to wit, about the 1st day of May, 1887, the plaintiff requested the defendant to pay the same, and comply with the terms of covenants and warranty in said deed first mentioned. Thereupon the defendant then requested the plaintiff to pay said taxes to the treasurer of Gosper county, Nebraska, and promised to repay the amount so to be advanced by this plaintiff necessary to pay said taxes and remove said incumbrance. (4) In compliance with the said request of the defendant, and relying on the said promises of the said defendant, and for the purpose of preventing the said land from being conveyed by tax deed, this plaintiff, on the 27th day of June, 1890, paid to the treasurer of Gosper county, Nebraska, the delinquent taxes on the above-described tract for the year 1886, which, with accrued interest, at that time amounted to the sum of $29.91, said amount then being the amount necessary to pay in order to discharge said tract of land from the incumbrance thereon by reason of said taxes. (5) No part of the said sum of money has been repaid by the defendant, and there is now due from the defendant to the plaintiff for said taxes so paid, the sum of $29.91, with interest from the 27th day of June 1890.” For the defendant there was presented the following motion: “Comes now the defendant in the above-entitled cause and moves the court for a rule on the plaintiff that he be made to strike out from his petition in this court, filed December 8, 1893, all that portion of allegation number three (3) commencing ‘The plaintiff requested the defendant to pay the same and comply with the terms of covenants and warranty in said deed first mentioned. Thereupon the defendant then requested the plaintiff to pay said taxes to the treasurer of Gosper county, Nebraska, and promised to repay the amount so to be advanced by this plaintiff necessary to pay said taxes and remove said incumbrance;’ also, to strike out therefrom all of allegation No. 4, reading as follows: ...