Bever v. North
| Decision Date | 05 October 1886 |
| Docket Number | 12,608 |
| Citation | 8 N.E. 576,107 Ind. 544 |
| Parties | Bever v. North |
| Court | Indiana Supreme Court |
From the Fountain Circuit Court.
Judgment affirmed.
J McCabe and C. M. McCabe, for appellant.
T. F Davidson, for appellee.
The appellee's complaint counts on a deed containing full covenants of warranty, and charges that the covenants were broken by an entire failure of title as to part of the land.
There is no merit in the appellant's contention, that a deed is not valid unless acknowledge before some officer authorized to take acknowledgments. An acknowledgment is essential to entitle a deed to go upon record, but it is not essential to give effect to the deed as between the parties.
Where an action to recover possession of land is brought by one claiming to be the owner, and the grantee duly notifies his grantor of the action, the latter will be bound by the judgment in which the action results.
It is an ancient rule that if the grantor is called upon to defend he must successfully do so, or else the judgment will conclusively establish the fact that there was a breach of the covenants of the deed. Morgan v. Muldoon, 82 Ind. 347, and authorities cited.
The complaint shows that an action was brought; that the appellant was duly notified to defend, and that a judgment of eviction was rendered, under which appellee yielded possession. There can be no doubt that the appellee was evicted, and that a clear right of action accrued to him for a breach of covenant. It was not the appellee's duty to appeal from the judgment of eviction, but he had a right to yield to it and sue upon the covenants in his deed. It is, indeed, not necessary for the complaint in an action for a breach of covenant to so fully plead the facts as does the one before us, for it is enough if a judgment and an eviction under it are shown without averring that the covenantor was required to defend. McClure v. McClure, 65 Ind. 482; Wilber v. Buchanan, 85 Ind. 42; Wright v. Nipple, 92 Ind. 310.
The allegations of the first paragraph of the answer are substantially these: That the appellant was the owner of the land described in the deed, subject to the rights of the wife of James Williams to one-third thereof; that the appellee knew of the interest of the wife of Williams; that he contracted for the land subject to her claim, and that he agreed to assume and pay off the encumbrance created by her estate. The court did right in adjudging this answer bad. A grantor can not contradict the terms of a deed by parol evidence, for the general rule is, that all preliminary negotiations are merged in the deed. Phillbrook v. Emswiler, 92 Ind. 590, and authorities cited; Ice v. Ball, 102 Ind. 42, 1 N.E. 66.
There is, it is true, an exception to this general rule, as well established as the rule itself, and that exception is, that parol evidence is admissible to prove the true consideration of a deed, except, perhaps, where the deed itself states the consideration fully and specifically. Hays v Peck, ante, p. 389; McDill v. Gunn, 43 Ind. 315; Carver v. Louthain, 38 Ind. 530; Pitman v. Conner, 27 Ind. 337; Allen v. Lee, 1 Ind. 58. But the exception to the general rule does not permit the introduction of parol evidence to defeat the operation of the deed by rendering nugatory the words of conveyance which it contains, and a grantor can not, under the guise of proving the consideration of a deed, prove that it was not to operate as a conveyance. To allow this to be done would be to render ineffective one of the most important parts of the deed; it would, in truth, be to permit the utter destruction of the deed as an instrument of conveyance. This the law will not allow. The principle which governs this case was thus stated by the court in Beach v. Packard, 10 Vt. 96: ...
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