Eiseley v. Spooner

• Decision Date: 21 February 1888
• Citation: 36 N.W. 659,23 Neb. 470
• Parties: EISELEY v. SPOONER ET AL.
• Court: Nebraska Supreme Court

23 Neb. 470

36 N.W. 659

EISELEY

v.SPOONER ET AL.

Supreme Court of Nebraska.

February 21, 1888.

Syllabus by the Court.

Rent reserved by lease of real estate, and not accrued at the time of a conveyance of the reversion, passes with such conveyance to the grantee. Every conveyance of real estate shall pass all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used.

In the construction of an instrument conveying real estate it is the duty of the court to carry into effect the true intent of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law. Comp. St. 1887, c. 73, § 53.

On the 29th of April, 1885, A. executed to B. a lease to certain real estate, for a term of one year, from March 1, 1885, the rent reserved being a share of the crop to be delivered on or before January 1, 1886. Under this lease B. took possession of the premises. On the 30th of April, 1885, and while the tenant was in possession, A. sold the real estate to C., conveying the same by warranty deed, “subject to a lease which expires March 1, 1886.” Held, that C. was entitled to the rent reserved, the limitation in the deed only being intended as a recognition of the rights of the lessee, and a limitation upon the covenants of warranty contained in the deed.

Error to district court, Dodge county; MARSHALL, Judge.

Action by Charles F. Eiseley against A. M. Spooner and Thomas W. Lyman to recover the value of his share of a certain crop alleged to have been converted by them to their own use. Finding and judgment for defendants, and plaintiff brings error.

H. C. Brome, for plaintiff in error.

E. F. Gray and W. H. Munger, for defendants in error.

REESE, C. J.

On the 29th day of April, 1885, C. F. Eiseley leased to George Weigle certain real estate, for a term beginning on the 1st day of March, 1885, and ending on the 1st day of March, 1886. The rent reserved was two-fifths of all wheat, barley, rye, oats, and corn raised on the premises during the season of 1885, to be delivered on or before January 1, 1886. On the 30th day of April, 1885, Eiseley, the landlord, sold, and by warranty deed conveyed, the real estate to defendants for the consideration of $9,000. The land is conveyed “subject to a lease which expires March 1, 1886.” This language immediately follows the description of the property. At the time of the execution of this deed, the tenant was in possession of the real estate. During the year 1886 the share of the crop due to the landlord was delivered to defendants, purchasers; and this suit is brought by the vendor, Eiseley, against them for the value of the rent collected by them. The cause was tried by the district court, which resulted in a judgment in favor of defendants. Plaintiff brings error to this court. The only question involved in the case is the construction to be placed upon the language of the deed referring to the lease. Was the rent reserved by the terms of the lease, and which was to accrue after the conveyance, reserved to the grantor by the language used in the deed, or was the grantee entitled thereto? It is contended by plaintiff in error that the language used constitutes an exception out of the grant; that, fairly construed, it means that the grantor reserves the use of the premises conveyed until the 1st of March, 1886. While upon the part of defendants in error it is insisted that the words are not an exception, because nothing is excepted or taken out of the thing conveyed; nor yet...