Foshay v. Shafer

• Decision Date: 11 April 1902
• Citation: 116 Iowa 302,89 N.W. 1106
• Parties: FOSHAY v. SHAFER ET AL.
• Court: Iowa Supreme Court

116 Iowa 302

89 N.W. 1106

FOSHAY

v.SHAFER ET AL.

Supreme Court of Iowa.

April 11, 1902.

Appeal from district court, Fremont county; W. R. Green, Judge.

John Jacob Shafer died in 1852, seised of certain land in Fulton county, Ill., which he devised to his four children, Henry E., Lewis D., Louisa E., and Luther A. Shafer, subject to a life estate therein given his wife, Margaret Shafer. In 1874 the devisees, except Louisa E. Shafer, executed a conveyance of the land to Daniel Foshay, stipulating therein that “we hereby covenant with the said Daniel Foshay that we hold said premises by good and perfect title; that we have good right and lawful authority to sell and convey the same; that they are free and clear of all liens and incumbrances whatsoever. We covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever.” The widow died in 1897. Henry E. Shafer also is dead, and Louisa E. Shafer, who had intermarried with Daniel B. Moreland, died June 14, 1873. It will be observed that the one-fourth interest of said Louisa was not conveyed to plaintiff, and on the 12th day of April, 1898, her surviving husband instituted suit in Fulton county, Ill., for an undivided one-eighth interest in the land, and later, upon hearing, was decreed the owner thereof. January 21, 1899, plaintiff procured a quitclaim deed from Moreland at an expense of $798.50, for which, and also costs, recovery was sought in this action. Judgment was entered for one-eighth of the purchase price, together with the rent and costs taxed against plaintiff in the Illinois suit. The defendants appeal. Affirmed.W. E. Mitchell, for appellants.

Hammond & Stevens, for appellee.

LADD, C. J.

Though the land was conveyed to plaintiff in 1874, he was not disturbed in the possession or quiet enjoyment of it until 1898, when Moreland asserted his claim to the ownership of an undivided one-eighth, to which the court subsequently found him entitled. The defendants, with the other devisees, received compensation for this much, to which, in making the conveyance in 1874, they conveyed no title whatever. The covenant, then, “we hold said premises by good and perfect title; that we have good right and lawful authority to sell and convey the same,”--was broken upon the delivery of the deed. But, as the covenantee had been given possession, the breach was only technical, and did not entitle him to recover substantial damages until some positive injury had been suffered. Nosler v. Hunt, 18 Iowa, 212;Boon v. McHenry, 55 Iowa, 202, 7 N. W. 503;Hencke v. Johnson, 62 Iowa, 555, 17 N. W. 766;Norman v. Winch, 65 Iowa, 263, 21 N. W. 598. The cases relied on by appellant are not inconsistent with those cited. In Brandt v. Foster, 5 Iowa, 287, 294, the grantor had no title, and, to avoid eviction, the covenantee had purchased the paramount title. In Shorthill v. Ferguson, 44 Iowa,...