Doyle v. Emerson

• Decision Date: 11 January 1910
• Citation: 145 Iowa 358,124 N.W. 176
• Parties: DOYLE v. EMERSON ET AL.
• Court: Iowa Supreme Court

145 Iowa 358

124 N.W. 176

DOYLE

v.EMERSON ET AL.

Supreme Court of Iowa.

Jan. 11, 1910.

Appeal from District Court, Linn County; F. O. Ellison, Judge.

This is an action for damages for an alleged breach of covenant of a warranty deed. There was a verdict and judgment for plaintiff, and defendants appeal. Affirmed.Thompson & Son, for appellants.

Jos. Mekota & Carroll Bros., for appellee.

EVANS, J.

The defendants are wife and husband. On August 10, 1905, they conveyed by warranty deed certain lots in Cedar Rapids to John L. Doyle. The deed contained full covenants of warranty, including a warranty that the premises were free from incumbrance. In February, 1906, the grantee Doyle died testate, leaving his widow, the plaintiff herein, as his sole devisee. At the time of the conveyance in question, the premises conveyed were subject to a lien for paving taxes to become due in equal annual installments extending over a period of five or six years. The plaintiffs paid these paving taxes and brought this action to recover the amount thereof from the defendants on their covenants. The answer filed by the defendants averred that the grantee, Doyle, had “assumed and agreed to pay” the paving tax in question, “and that the deed was accepted by him with full knowledge of the tax.” It was not averred whether the agreement was in writing or not, nor was the answer attacked either by motion or demurrer. The case came to trial before the court and a jury.

Appellant's argument does not advise us of the specific errors complained of. The instructions of the court are not set forth in the abstract. There do not appear to have been any rulings on the evidence adverse to the appellants. The argument is devoted to the merits of the case as a whole. The evidence is undisputed as to the amount of the paving taxes against the property. It is also undisputed that they were a lien upon the property at the time of the execution of the deed, and at the time of the execution of the contract preceding the deed. Appellants plead such preliminary contract and set it forth in their answer. But such contract expressly provides that the property shall be “clear of incumbrance, with taxes for 1904 to be fully paid.” This contract therefore avails the defendants nothing in support of their defense. The alleged agreement, if any, of Doyle to assume the payment of such paving taxes, rested wholly in parol. It was not available to the defendants in this action under the issues as made. If such was the real agreement between the parties in pursuance of which the deed was executed, then there was a mistake in the deed and contract. The defendants did not plead such mistake. They could have pleaded the same as an equitable defense or cross-bill. Section 3566 of the Code. They could have asked a reformation of the deed by cross-bill, and would have been entitled to a trial of such issue before a trial of the issues at law. Byers v. Rodabaugh, 17 Iowa, 53. They could also have brought an independent action in equity to reform the deed if they had chosen to do so. They did nothing of this kind, doubtless for the sufficient reason that the evidence available to them was insufficient to establish their claim. The only evidence exhibited on the trial was a carbon copy of a letter purporting to have been written by C. P. Emerson to grantee, Doyle, on August 28, 1905. This letter would indicate the writer's understanding and claim at that time that Doyle was to pay the installments of paving tax falling due in the future. A letter from Doyle dated August 31st makes no reference to the subject. If this letter was the answer to Emerson's letter, an inference of acquiescence might be drawn. The value of this...