Brass v. Vandecar

• Decision Date: 07 October 1903
• Docket Number: 13,153
• Citation: 96 N.W. 1035,70 Neb. 35
• Parties: E. M. BRASS v. SUSAN O. VANDECAR
• Court: Nebraska Supreme Court

96 N.W. 1035

70 Neb. 35

E. M. BRASS v. SUSAN O. VANDECAR

No. 13,153

Supreme Court of Nebraska

October 7, 1903

ERROR to the district court for Howard county: JAMES N. PAUL JUDGE. Affirmed.

AFFIRMED.

O. A Abbott, for plaintiff in error.

T. T Bell and H. B. Vandecar, contra.

BARNES, C. GLANVILLE and ALBERT, CC., concur.

OPINION

BARNES, C.

This action was commenced in the county court of Howard county by Susan O. Vandecar against E. M. Brass and Anna Brass, to recover damages alleged to have been sustained by her on account of a breach of warranty against incumbrances, peaceable possession and quiet enjoyment, contained in a certain warranty deed executed and delivered by them to her. It appears that E. M. Brass sold certain land in Washington county in this state to Susan O. Vandecar, and gave her a deed therefor, which contained full covenants of warranty, only reserving the possession of the premises until March 1, 1900; that, at the time the deed was given, Brass represented to Mrs. Vandecar that the lands were occupied by a tenant, whose lease would expire March 1, 1900; that the lease was at the First National Bank of Arlington, Nebraska; that on or about March 1, 1900, the agent of Mrs. Vandecar went to Arlington to take possession of the land, and then and there ascertained that the tenant was not holding under a lease which expired March 1, but claimed to be holding under an old lease and an arrangement which constituted him a tenant from year to year, and further claimed the right to remain on the land for another year, to wit, until March 1, 1901; Vandecar did not give the six months' notice required to terminate a tenancy from year to year, because Brass represented, at the time of the sale, that the tenant was holding under a lease which expired March 1, 1900; Brass never gave any notice to terminate the lease, and so it could not be terminated until the next year, and it was impossible for Vandecar to obtain possession until March 1, 1901. Attempting to obtain possession, Vandecar gave the three days' notice provided for by statute; the tenant refusing to vacate, nothing more was done because it appears that Brass requested Vandecar to go no farther, and agreed to go to Arlington and get the tenant off of the land at his own expense. Whether or not such an agreement was made, was a disputed question of fact, and upon which the testimony was conflicting, but the jury evidently found for the plaintiff, in the court below, on that issue. Brass failing to put Vandecar in possession, this action was brought to recover damages for the breach of the covenants contained in the deed above mentioned. The damages claimed were the value of the use of the land for the year 1900, and the expenses paid in getting possession. The petition was in the usual form; in the county court, the defendants demurred to the petition; the demurrer was sustained as to Anna Brass, but overruled as to E. M. Brass. He thereupon answered, setting up several defenses, among which was an objection to the jurisdiction of the county court; the objection was overruled, and the trial resulted in a judgment for the plaintiff; Brass appealed to the district court, where the same petition was filed by the plaintiff, and the same defenses were raised by the answer of the defendant. The objection to the jurisdiction of the court was overruled; a trial was had, which resulted in a verdict and judgment for the plaintiff; the defendant prosecuted error to this court, and will hereafter be called the plaintiff.

It is contended by the plaintiff that the court erred in overruling the objection to the jurisdiction, because the county court had no jurisdiction of the subject matter, it being an action in which the title to real estate was in question. We are unable to agree with the plaintiff so far as this matter is concerned, for the reason that the identical question has been twice before us, and has been settled adversely to his contention. It was held in Campbell v. McClure, 45 Neb. 608, 63 N.W. 920, that a justice of the peace had jurisdiction in an action for damages based on the breach of a covenant in a deed against incumbrances, where there were unpaid taxes which were a lien on the land at the date of the execution of the deed, and which the grantee was obliged to pay. This case was approved and followed in Hesser v. Johnson, 57 Neb. 155, 77 N.W. 406, in which it was said:

"A county court has jurisdiction, within the statutory limit of amount, in actions to recover damages for breach of covenant against incumbrances."

It is stated in 2 Devlin, Deeds (2d ed.), secs. 906, 907, that a lease is an incumbrance. It was so held in Fritz v. Pusey, 31 Minn. 368, 18 N.W. 94, where the court said:

"An 'incumbrance,' within the meaning of the covenant against incumbrances, includes any right or interest in the land which may subsist in third persons to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance. Hence, an outstanding lease is an incumbrance."

It was further held in that case:

"The inability of the grantee in a deed to obtain possession, by reason of an outstanding paramount right or title, is a breach of the covenant for quiet enjoyment. It is not...