Eversole v. Early

• Decision Date: 12 February 1890
• Citation: 80 Iowa 601,44 N.W. 897
• Parties: EVERSOLE v. EARLY ET UX.
• Court: Iowa Supreme Court

80 Iowa 601

44 N.W. 897

EVERSOLE

v.EARLY ET UX.

Supreme Court of Iowa.

Feb. 12, 1890.

Appeal from district court, Sac county; J. H. MACOMBER, Judge.

Action to recover damages for breach of covenants of warranty in a deed of conveyance. Plaintiff alleges that defendants conveyed to him certain lands by deed of general warranty, and that afterwards he conveyed the same, by the same kind of deed, to N. G. Wilson; that thereafter J. C. Barke, claiming to be the owner in fee-simple of said land, commenced an action against said N. G. Wilson and D. Carr Early to quiet his title to, and recover possession of, said land, and that it was adjudged that said Barke was the owner of the land, and entitled to the possession thereof, that Barke conveyed his title to A. B. Mason and E. G. Thomas, and that to protect his title, and fulfill his covenants to N. G. Wilson, plaintiff purchased said land of said Mason and Thomas, and they conveyed the same to him in consideration of $1,600; that said title from Mason and Thomas was paramount to the title conveyed by said Early to plaintiff; and that said Early has not paid any portion of the money due on said covenants of warranty; wherefore he asks judgment. The defendants answered in three counts. In the first they admit they sold and conveyed to plaintiff for $760; that plaintiff conveyed to Wilson; that Barke commenced an action, as stated, pending which he conveyed to Mason and Thomas; and that Mason and Thomas conveyed to plaintiff; but deny that it was for the consideration stated. For a second count, they simply deny all allegations of the petition not admitted or denied in the first. The third count alleges that at the time defendant Early conveyed to plaintiff he held title to said land under a tax-deed; that the purpose of Barke's action was to redeem said land from the tax-sale, and to cancel said tax-deed, and tendered in his petition any amount that might be found due from him for taxes paid; that a decree was entered in said case finding said Barke to be the owner in fee-simple of the premises, and ordering cancellation of the tax-deed, on condition that Barke should pay to the defendants in said action the taxes they had paid, with interest and penalties, amounting to $968.50. They further allege in said count that it was decreed “that the plaintiff be required to pay amount of taxes paid by defendants by the 1st day of May, 1887, if no petition for improvements be filed by that time, but, in case a petition for improvements be filed by that time, plaintiff shall have sixty days after the determination of said question for improvements to pay said amount paid by the defendants as taxes on said land, and, in case plaintiff fails to pay said amount in sixty days after the final determination of the question of improvements, the title to said land shall be quieted in the defendants;” that prior to the entry of said decree Mason and Thomas, who were the attorneys for Barke, took their conveyance from him by quitclaim deed, and obtained possession of the land from a tenant in possession, thus rendering it impossible for the defendants in said action to commence and maintain an action for improvements; that said Barke or his grantees did not at any time pay to the defendants in said action, or either of them, the taxes found due by the court, though no claim for improvements has ever been filed. Wherefore these defendants say that their title under said tax-deed was quieted and confirmed by the terms of said decree, and that his deed to this plaintiff passed to him a good, valid, and indefeasible title to...