Fierce v. Houghton

• Citation: 98 N.W. 306,122 Iowa 477
• Parties: F. E. PIERCE, Appellant, v. AMY W HOUGHTON (LACY), Appellee
• Decision Date: 29 January 1904
• Court: United States State Supreme Court of Iowa

98 N.W. 306

122 Iowa 477

F. E. PIERCE, Appellant, v. AMY W HOUGHTON (LACY), Appellee

Supreme Court of Iowa, Des Moines

January 29, 1904

Appeal from Monona District Court.--HON. JOHN F. OLIVER, Judge.

THIS action was originally brought at law on the covenants of warranty in a deed. The defendant pleaded an equitable defense, and also a cross-bill, in which she asked for a reformation of the deed, by introducing the reservation of a railway right of way across the land conveyed. The trial court dismissed plaintiff's petition and reformed the deed as prayed, and plaintiff appeals.

Affirmed.

Lewis & Lewis for appellant.

McMillan & Kendall for appellee.

OPINION

DEEMER, C. J.

Defendant Houghton, who made the warranty deed on which this action is bottomed, contracted to sell the property to one Newman. Newman concluded that the land was too much of a burden for him to handle, and he entered into negotiations with plaintiff for an exchange of this property for a smaller tract. An exchange was finally agreed upon between them, and in order to carry it out, it was arranged that defendant should deed directly to plaintiff, and that plaintiff should deed to Newman. Pursuant to this arrangement, defendant made without reservation and with covenants of warranty, a deed of bargain and sale to the plaintiff. Plaintiff, in compliance with his part of the arrangement, made a mortgage back to the defendant to secure some notes given for the purchase price of the land. This mortgage contained no reservation. These transactions occurred early in the year 1893. At the time the deed was made, a railway was operating a line of road over and through the land conveyed; having obtained title thereto by deed of conveyance from a former owner of the land. The amount of land in the right of way is practically fifteen acres. Sometime after the deed was made plaintiff in some manner discovered that there was a breach of the covenants of warranty in defendant's deed, but instead of bringing action, or interposing a set-off to the notes which he had executed to the defendant, paid the same, and did not commence this action until December of the year 1901. Under the previous holdings of this court, the railway right of way was an incumbrance, and plaintiff is entitled to recover for breach of covenants of warranty unless it be for some of the defenses pleaded. The rule is announced in Flynn v. Coal Co., 72 Iowa 738, 32 N.W....