Fouch v. Rollins
| Decision Date | 30 November 1956 |
| Docket Number | No. A-11821.,A-11821. |
| Citation | 146 F. Supp. 87 |
| Parties | Jack FOUCH, Plaintiff, v. Joseph C. ROLLINS and Beryl Rollins, Defendants. |
| Court | U.S. District Court — District of Alaska |
David H. Thorsness of Davis, Renfrew & Hughes, Anchorage, Alaska, for plaintiff.
John C. Dunn, Anchorage, Alaska, for defendants.
This matter comes before the court upon a motion by the plaintiff for an order "* * * directing the plaintiff to pay into the registry of the court, all amounts due under that contract designated Exhibit `A' * * * as the same shall become due and payable". The defendants have answered and the case is at issue but a trial date has not been assigned because of the backlog of pending cases.
The plaintiff alleges that he entered into a real estate contract with the defendants on November 27, 1951, under the terms of which he was to purchase lot one in block three of the Lincoln Park Subdivision, Anchorage Recording Precinct. The contract appears to be a standard installment agreement containing the conventional provisions. Plaintiff alleges that he has performed all the conditions of the contract including making payments to date. He contends, further, that after the execution of the contract he discovered that a substantial portion of the house encroaches upon a public street. He states that upon discovery of this defect, he demanded that the defendants take necessary steps to remove the encumbrance by moving the house within the borders of the real property purchased. He then alleges that the defendants refused to do this and that by reason of this encumbrance, plaintiff has suffered damages in the sum of $6,000. He pleads alternatively "* * * that such encumbrance and refusal to remove said encumbrance by the defendants is a breach of the real estate contract designated `Exhibit A' and the covenant against encumbrances in the deed designated `Exhibit B' and that this is a proper case for specific performance of said contract".
In the ad damnum clause the plaintiff asks for .
The warranty deed now in escrow contains the usual grantor and description clauses and thereafter in the habendum et tenendum portion thereof provides as follows:
"To Have And To Hold the said premises, all and singular, together with the appurtenances and privileges thereto incident, unto the said party of the second part, his heirs, executors, administrators and assigns, Forever, and the said party of the first part covenants and agrees with the said party of the second part, that he is the lawful owner of the said premises, and that he has the legal right to sell the same and that there are no liens or other encumbrances against the said property, and the party of the first part does by these presents warrant and will forever defend the said party of the second part, his heirs, executors, administrators and assigns, in the quiet and peaceable possession of the said premises, against any and all persons having or claiming any right, title, or interest or estate therein, by any lawful claim."
Plaintiff contends that the requested relief is authorized by rule 67, Fed.Rules Civ.Proc. rule 67, 28 U.S.C.A., provides:
"In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing."
This language is unquestionably broad enough to include the requested relief. The question is whether this is the kind of situation that was contemplated by the Supreme Court when this rule was drafted. Diligent inquiry fails to reveal cases decided on this facet of the rule. Whether this is a comment upon the unique character of the fact situation, or that the rule is inapplicable, I am unable to say. None of the cases which I shall cite concerning deposits were recited under similar rules of procedure.
The practice of depositing contested funds with the clerk of the court enjoys a wealth of precedent. Howard v. United States, 1902, 184 U.S. 676, 22 S.Ct. 543, 46 L.Ed. 754; Louisiana Nat. Bank v. Whitney, 1887, 121 U.S. 284, 7 S.Ct. 897, 30 L.Ed. 961. Each of the cases cited, however, concerns a specific fund and in each case the deposit is made by the defendant or his debtor. Some cases permit a tenant to tender his rent into court pending a determination of the legal owner of the occupied premises in order that the tenant avoid the possibility of paying twice should he, by chance, choose the wrong payee. Yoest v. McCracken, 1947, 357 Pa. 484, 55 A.2d 323. A general rule allowing deposits is announced in Robinson v. City of Pine Bluff, 1955, 224 Ark. 791, 276 S.W.2d 419 and First National v. Baker, 1927, 141 Wash. 672, 252 P. 105, but in each case the fact situation illustrates a tender by the defendant or someone indebted to the defendant.
In view of extensive coverage indicated by the language of rule 67 and without the benefit of guidance from the treatment of this matter in other jurisdictions, I am disposed to determine this motion on the basis of the existing equities.
Defendant Joseph Rollins is a member of the armed forces of the United States and outside the jurisdiction of this court. A personal judgment against the defendants would probably be of little value to the plaintiff. Counsel for the defendant urges that this consideration is balanced against the plaintiff by the weakness of his case in chief. He argues that the alleged injury is based upon a right which has not at this time matured. This position hinges upon plaintiff's allegation that the purported encroachment is a breach of covenant of title. It is my opinion that the general law on this point is that the covenant against encumbrances is broken, if at all, at the time the deed is delivered. 21 C.J.S., Covenants, § 42, p. 915; 4 Tiffany on Real Property 134; Gore v. General Properties Corporation, 1942, 149 Fla. 690, 6 So.2d 837, 840, 141 A.L. R. 476, where the court said:
"The covenant against encumbrances is broken when the deed is delivered, and a right of action immediately accrues." (Citing 7 Thompson on Real Property 212.)
In the Fouch case the deed is in escrow and according to the terms of the contract will not be delivered until final payment is made. Accordingly, the covenant has not been breached. However, the defendant neglects the part of plaintiff's complaint which alleges that the encumbrance is a breach of the contract itself. The real estate contract in issue provides that a "good" deed is to be delivered to the escrow agent. I am of the opinion that the vendee may elect to rescind the...
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Baxter v. United Forest Products Co., 19287.
...the defendant may sustain by reason of the wrongful suing out of the attachment." 9 The plaintiff relies upon Fouch v. Rollins, 16 Alaska 545, 146 F.Supp. 87 (D.C. 1956). For the reasons stated in the opinion we do not accept the Fouch case in this 10 The Iowa court reviewed its earlier sta......
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Aleut Corp. v. Arctic Slope Regional Corp.
...IS ORDERED THAT the motion for sequestration is denied. 1 It has been asserted that sequestration was allowed in Fouch v. Rollins, 146 F.Supp. 87, 16 Alaska 545 (D.Alaska 1956). That case, however, involved Rule 67 and is not applicable to the issue presently before the 2 One source states ......
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Richardson v. Van Dolah, 24048.
...he was entitled to assume that the seller's covenants of title were effective from the beginning. See Fouch v. Rollins, 146 F.Supp. 87, 90, 16 Alaska 545 (D.Alaska 1956). With respect to those claims covered by the mining sublease, Van Dolah, as lessor, relies on the general rule that a ten......
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