Fisher v. Paup

• Decision Date: 16 December 1920
• Docket Number: 33605
• Citation: 180 N.W. 167,191 Iowa 296
• Parties: S. J. FISHER, Appellant, v. FRANK PAUP et al., Appellees
• Court: Iowa Supreme Court

180 N.W. 167

191 Iowa 296

S. J. FISHER, Appellant, v. FRANK PAUP et al., Appellees

No. 33605

Supreme Court of Iowa, Des Moines

December 16, 1920

REHEARING DENIED APRIL 6, 1921.

Appeal from Shelby District Court.--J. B. ROCKAFELLOW, Judge.

ACTION for damages consequent on alleged breach of covenant of deed resulted in the dismissal of the petition. The plaintiff appeals.

Reversed.

Edward S. White, for appellant.

Cullison & Cullison, for appellees.

LADD J. WEAVER, C. J., STEVENS and ARTHUR, JJ., concur.

OPINION

LADD, J.

The defendant Frank Paup, his wife joining, executed a warranty deed, purporting to convey Block 6 in West Park Addition to Grand Island, Nebraska. The consideration recited therein was $ 500; the date was June 16, 1915; and the space for name of grantee was left blank. This conveyance, with $ 1,600, was the consideration for the transfer to Paup of a house in Harlan, belonging to Asa White. J. G. Lewis conducted the negotiations for White, and finally bought the house for $ 1,600 and had it conveyed to Paup for like consideration, making the deed in blank. Nothing was said concerning the name to be inserted, though it was agreed that the place for grantee's name should be left blank. Later, Lewis exchanged the block in Nebraska for the share of the plaintiff, Sanford J. Fisher, in his father's estate, the former paying a difference of $ 1,100, and delivering the blank deed to Fisher. This was in May, 1916. In the course of two or three weeks, Fisher went to examine the land described in the deed, and found T. J. Dennon in possession, claiming ownership. On June 24, 1918, Fisher, by letter, authorized his attorney to insert the former's name in the deed as grantee, which was done, and thereafter this action brought. The petition alleged breach of the covenants in the deed, for that Paup did not hold the premises by good and perfect title, nor by any title whatever, and was without lawful authority to sell and convey the same, and that the property described in the deed was that owned by and in possession of another; and it was also asserted that defendants were estopped from questioning the validity of the deed. The answer was a general denial.

Authority to insert the name of grantee in the deed was clearly to be implied, according to numerous decisions of this court, as well as of the Supreme Court of Nebraska; and when this was done, the conveyance, including covenants, related back to the date of its execution by the grantor. Halvorson v. Mullin, 179 Iowa 293, 156 N.W. 289.

The only remaining question is whether Dennon had acquired title by adverse possession. If he had so done at the time of the conveyance, the covenants therein were breached upon delivery. In such a case, it is not necessary to allege an ouster or eviction; it is sufficient to negative the words of the covenant and to allege that the grantor had no seizin or title to the land. Brandt v. Foster, 5 Iowa 287, 294; Mitchell v. Kepler, 75 Iowa 207, 39 N.W. 241; Foshay v. Shafer, 116 Iowa 302, 89 N.W. 1106. If, then, Dennon had acquired title to the land by adverse possession, there was a breach of warranty eo instante upon the execution of the deed.

The evidence disclosed that Dennon had been in possession of and enjoying the use of the block of land described continuously for 18 years. During that time, it has been inclosed by fences separately or with other land owned by Dennon. He began occupancy by picketing his cows on the block, and then caused the rubbish, such as brick, iron, and the like, to be removed, and the land broken. He testified:

"I make claim to ownership of Block 6. I first made claim to ownership some 5 or 6 years ago. I don't know as I have said anything to anybody before that. I just took care of it as my very own for more than 12 years then. Nobody ever asked me anything about it. During this 18-year period, men came and said they bought it. I always did tell them it was my own, and that I would keep it that way."

It appears that there is a highway along the west side of West Park Addition, containing this block; that Dennon had title by deed to 94 of the lots in the addition, leased 38 lots of one Welpton, and, in his language:

"All the rest I have squatted on. There are 160 lots in the addition, and the rest, besides the 94 and 39, I am holding. My house is on Block 8. I am holding the streets and alleys. Part of them I farm, and part is in pasture. There are no streets and alleys left open. I have used Block 6 and streets and alleys about 18 years. * * * There has been man after man come there and say that he owned Block 6, but I always told them it was mine. That began 5 or 6 years ago. * * * I never had Block 6 fenced by itself. I took off probably half a dozen loads of brickbats, stone, and stuff from Block 6. Block 6 was in the thickest part of it. This place was used for a good many years for a dumping ground. They quit using it about 20 years ago. I got after the police, and they gave me signs to put up, to 'keep off.' I went to farming it. I didn't know the owner of Block 6; didn't make any inquiry. I didn't ask anybody's permission to go on there. I didn't inquire as to the matter of streets or boundaries of Block 6."

Other evidence tended to corroborate the above, and to prove the market value of the land in controversy. Also, Section 7564 of the Revised Statutes of Nebraska, 1913, was introduced in evidence, by which "an action for the recovery of the title or possession of lands, tenements or hereditaments, or for the foreclosure of mortgages thereon, can only be brought within ten years after the cause of action shall have accrued."

Numerous decisions of the court of last resort of that state also were introduced from which it appears that the doctrine of Grube v. Wells, 34 Iowa 148, does not obtain there, but that a naked claim of right, coupled with continuous, open, and notorious possession for a period of 10 years, establishes title by adverse possession. Thus it was said, in Murray v. Romine, 60 Neb. 94 (82 N.W. 318), with reference to whether a...