Estep v. Bailey

• Decision Date: 04 November 1919
• Parties: ESTEP v. BAILEY ET UX.
• Court: Oregon Supreme Court

185 P. 227

94 Or. 59

ESTEP v. BAILEY ET UX.

Supreme Court of Oregon

November 4, 1919

Department 2.

Appeal from Circuit Court, Washington County; Geo. R. Bagley, Judge.

Action by L. C. Estep against J. W. Bailey and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an action for the breach of a covenant of warranty contained in a deed. Judgment was rendered in favor of plaintiff, from which defendants appeal.

The facts of the case are, in effect, as follows: On January 19 1917, defendants, J. W. Bailey and Grace S. Bailey, his wife being the owners of lot 10, in Oak Park subdivision of section 35, township 1 north, range 3 west of the Willamette meridian, in Washington county, Or., containing 10 acres sold and conveyed the land to plaintiff, L. C. Estep, by a deed containing the following covenants:

"Said J. W. Bailey and Grace S. Bailey, grantors above named, do covenant to and with the said L. C. Estep, her heirs and assigns, that they are the owners in fee simple of the above-granted premises, and that they are free from all incumbrances, except a mortgage in favor of Daniel Deaville, given to secure a promissory note for $400, dated July 16, 1914, and due five years from date, which the grantee herein assumes and agrees to pay, and that they will, their heirs, executors, and administrators shall warrant and forever defend the above-granted premises, and every part and parcel thereof, against the lawful claims and demands of all persons whomsoever, except as against said mortgage."

Defendants had purchased the lot a short time before the conveyance from Felix Cabella, who during the fall of 1916 had leased three acres thereof to D. P. Corrieri. The lessee, during the fall of 1916, planted a crop of wheat and vetch on the leased land, which was growing at the time of the execution of the deed to plaintiff, and which did not mature until the summer of 1917. The plaintiff immediately entered into possession of the property under her deed, and was afterward notified by Corrieri that he claimed to be the owner of the crop. Whereupon plaintiff by her husband, F. S. Estep, informed defendant J. W. Bailey of the claim of Corrieri, and was told, in effect, not to worry over it; that he intended that plaintiff should have the crop, and that Corrieri could not make anything out of the case. Thereafter plaintiff harvested and sold the crop; after which Corrieri instituted an action against the Esteps to recover the value of the crop claimed under his lease. Plaintiff then duly notified the the defendants of the action brought by Corrieri, and demanded that defendants appear in the action and defend the title to the property, or otherwise plaintiff would defend the action and expect reimbursement from defendants. The Baileys refused to comply with the notice. Plaintiff resisted the action, but Corrieri obtained a judgment against the Esteps for $119.95 and $38.20 costs.

Defendants objected and excepted to the introduction of the record in this action as evidence of the judgment in favor of Corrieri. At the close of plaintiff's evidence in chief, counsel for defendants moved the court for a judgment of nonsuit against plaintiff, which was denied. After the introduction of all the testimony in the case, counsel for defendants renewed the motion for a nonsuit, which was also overruled. Defendants' contention was that there was not sufficient evidence to take the case to the jury; that plaintiff had not introduced any evidence of the reasonable value of the use and occupation of the premises for the time lost by plaintiff by reason of the Corrieri lease. Defendants offered proof tending to show that the rental value of the three acres leased to Corrieri for the crop season of 1916 and 1917 was $30. This evidence was rejected, and an exception to the ruling was duly saved. Counsel for defendants requested instructions to the jury in accordance with their theory of the case. The trial court directed a verdict in favor of plaintiff holding defendants bound by the judgment in the action instituted by Corrieri for damages for the conversion of his crops.

Thomas H. Tongue, of Hillsboro (H. T. Bagley, of Hillsboro, on the brief), for appellants.

R. F Peters, of Hillsboro (Hare, McAlear & Peters, of Hillsboro, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

As plainly stated in appellants' brief: All the questions to be determined on this appeal cluster about, and will necessarily be disposed of by, the determination of the last-named point. The plaintiff in the case at bar, in addition to the amount of the Corrieri judgment, recovered $50 for attorney's fees in the former action. The reasonableness of this fee was not questioned in the former action, so there was no necessity for submitting that part of the case to the jury, the defendants' contention being that they were not liable therefor.

It is urged by counsel for defendants that the crops on a portion of the land were personal property owned by Corrieri, and no title thereto passed by the deed, and that the defendants are not liable under their covenant for the damages for the conversion of such crops by plaintiff. It is also contended by defendants that in any event the true measure of damages in the present case is the fair rental value of the land for the unexpired term of the lease. It appears that the lease from the former owner to Corrieri was not in writing, and that Mr. Bailey did not know of its existence while he owned the land. There was no reservation of the crop in the deed to plaintiff. It is practically conceded in this case that the claim of Corrieri to the crop in the action therefor was based upon the outstanding lease from Cabella, the former owner of the premises.

"An 'incumbrance' is a burden on land which depreciates its value, as a lien, easement, or servitude, and includes 'any right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the conveyance of the title."' 2 Words and Phrases (2d Series) p. 1018.

See, also, Friendly v. Ruff, 61 Or. 42, 120 P. 745; Rawle on Covenants for Title (5th Ed.) p. 90, § 75. An outstanding lease upon premises at the time of conveyance constitutes an incumbrance. 7 R. C. L. 1164; Beutel v. American Machine Co., 144 Ky. 57, 137 S.W. 799, 35 L. R. A. (N. S.) 779.

The existence of a valid lease to Corrieri at the date of the deed from the defendants to the plaintiff was a breach of the covenant against incumbrances, quoted above, and entitled Mrs. Estep the covenantee, to recover damages. 7 R. C. L. p. 1164, § 79.

According to the rule of the common law, growing crops pass with the title to the land on a conveyance thereof in fee, unless they are reserved by the vendor. This rule is based upon the principle that a deed is to be construed most strongly against the grantor, and if the crop is not reserved the grantor is presumed to have intended it to pass with the possession. If the rule were otherwise, a purchaser of land would be subject to the intrusion of the grantor to gather the crop, which, in the absence of a stipulation granting such privilege, would be a trespass, and there would be presented the situation of the ownership by one of personal property on the land of another without the right to enter and take it. 8 R. C. L. p. 358, § 5; note to Beutel v. American Machine Co. (Ky.) 35 L. R. A. (N. S.) 779.

As between the Baileys the vendors of the land and Mrs. Estep, the purchaser, a deed to the property upon which a crop was then growing would convey to the purchaser the growing crop as part of the real property, unless the same was reserved by the vendor in the deed. 8 R. C. L. p. 358, § 5; 12 Cyc. 977; Jones v. Adams, 37 Or. 473, 475, 59 P. 811, 62 P. 16, 50 L. R. A. 388, 82 Am. St. Rep. 766; 8 Am. & Eng. Enc. of Law (2d Ed.) 303. This is true even if Mrs. Estep, the purchaser of the land, knew that there was an outstanding lease upon a portion of the premises at the time she purchased. Corbett v. Wrenn, 25 Or. 305, 35 P. 658; Clark v. Fisher, 54 Kan. 403, 38 P. 493.

As between Corrieri and his landlord, Cabella, and his successors, Corrieri, as a tenant, was entitled to the annual crops raised on the leased land during the tenancy. As between them such crops are not part of the freehold, but are the property of the tenant, in the...