Halvorson v. Mullin

• Decision Date: 16 February 1916
• Docket Number: 30215
• Parties: HALVOR HALVORSON, Appellee, v. DENNIS MULLIN et al., Appellants
• Court: Iowa Supreme Court

156 N.W. 289

179 Iowa 293

HALVOR HALVORSON, Appellee, v. DENNIS MULLIN et al., Appellants

No. 30215

Supreme Court of Iowa, Des Moines

February 16, 1916

SUPPLEMENTAL OPINION, WEDNESDAY, FEBRUARY 14, 1917.

Appeal from Taylor District Court.--H. K. EVANS, Judge.

ACTION for breach of warranty, in which defendants interposed a counterclaim praying recovery of an amount paid by them to discharge the remainder of a foreclosure decree not satisfied by the sale of the mortgaged land. On hearing, judgment was entered for plaintiff as prayed, and the counterclaim dismissed. The defendants appeal.--Affirmed in part and Reversed in part.

Reversed in part and Affirmed in part.

W. M Jackson and G. B. Haddock for appellants.

Henry & Henry and J. R. Plummer, for appellee.

LADD J. GAYNOR, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

On and prior to March 16, 1910, defendants owned Lot 3 of Everett's Subdivision 1 of the official plat of NW1/4 NW1/4 Section 4, in Township 78 North, of Range 24 West of the 5th P. M., in Des Moines; and one Emel Lockband owned the SE1/4 of Section 24 and the NE1/4 of Section 25, in Township 28 North, of Range 28, in Gay County, Kansas. They negotiated an exchange through agents, one Price acting for the Mullins, and the Wilson Land & Loan Company for Lockband, and consummated the same, Lockband conveying the Kansas land, estimated to be worth $ 8,000, to defendants, subject to a $ 2,000 mortgage, and defendants signed deeds to the property in Des Moines, valued at $ 12,000, with warranties "excepting two mortgages of $ 1,500 each and 1909 taxes and mortgage to Grant McPherrin of $ 2,500, with 8 per cent interest." When signed by defendants and their wives, the exception was followed by the words, "which second party assumes and agrees to pay," but the agent of Lockband objected; and, after John Mullin had obtained the consent of Dennis Mullin over the telephone, as he pretended, John struck this clause out, and delivered the deed to said agent and received that to the Kansas land. It turned out that Dennis Mullin knew nothing of such change and never consented thereto.

I. Such are the facts, and the first inquiry is whether plaintiff is entitled to recover the amounts paid by him in redeeming from the sale covering the paving, curb and gutter assessments. When these improvements were made does not appear from the record, nor is it shown when they first became a lien on the property. This happened when the city clerk filed with the county auditor "a written or printed copy of the notice of the resolution provided for [of necessity], with a true copy of the proof of publication thereof, together with a certificate of the clerk that an ordinance or resolution has been adopted directing the making or reconstruction of said street improvement or sewer." Section 816, Code Supplement, 1913; Cemansky v. Fitch, 121 Iowa 186, 96 N.W. 754. As the burden was on plaintiff to prove that these special taxes became a lien at such a time as to constitute a breach of the warranty contained in the deed, it is important to ascertain when such deed became effective in passing title, and at what time the warranty became effective. The plaintiff received from the Wilson Land & Loan Company the deed signed by the Mullins, in an exchange negotiated with them in March, 1911, and his name was then inserted therein as grantee. Shortly afterwards, he, through his attorney, redeemed the property from a tax sale had in December, 1910, by paying $ 561.76, being $ 16.13 on curb and gutter certificate, with $ 1.67 interest, and $ 464.53 on paving certificate, with $ 78.43 interest; and a special gutter tax of $ 16.28 also was paid. The general taxes of 1909 were included in the redemption.

If, upon filing in the name of the grantee, the conveyance related back to the date of the delivery of the deed by John Mullin to the Wilson Land & Loan Company for Lockband, then, of course, it must be found that no breach was proven. This is conceded by appellee, who contends that the Mullins were not divested of title until the name of the grantee was inserted. The evidence leaves no doubt that, after the deed was signed, John Mullin was authorized to deliver it to Lockband or his agent, and that it was handed to his agent with the design of delivering upon receipt of the conveyance of the Kansas land. In other words, the grantors had done everything they could to part with the title. That there was delay in inserting the name of the grantee was no fault of theirs. The Mullins then ceased to own the property, and any court would have recognized the equitable title as in Lockband, independently of the deed, for he had paid full consideration therefor in conveying the Kansas land. Santee v. Keefe, 127 Iowa 128, 102 N.W. 803. In short, they retained no interest therein whatever. See Logan v. Miller, 106 Iowa 511, 76 N.W. 1005. Upon inserting the name of the grantee, the deed became operative in passing the fee title as of its date. The situation is like that where an owner deposits a deed with another to be delivered on his death. When delivered, as directed, upon the owner's death, the deed relates back to the first delivery. Dettmer v. Behrens, 106 Iowa 585, 76 N.W. 853. So with a conveyance with name of the grantee left blank. The delivery is complete, and the grantor then parts with all his interest in the land, and, as title must be in someone at all times, the deed, upon the insertion of the grantee's name, relates back and becomes operative from the delivery. Such, indeed, must be assumed to have been the intention of the parties, for it accords with the time ownership on the part of the grantor ceased by the delivery of the deed. It follows that the special assessments were not shown to have become liens on the land in time to constitute a breach of the warranty contained therein.

II. In the deed executed by the Mullins, the McPherrin mortgage of $ 2,500 was merely excepted from the covenants. The assumption of payment was, as seen, stricken therefrom. There was no agreement, oral or written, to pay it, and, if the plaintiff is liable therefor, it is because of its having formed a part of the consideration for which the conveyance was executed. See Wood v. Smith, 51 Iowa 156, 50 N.W. 581; Northwestern Nat. Bank v. Stone, 97 Iowa 183, 66 N.W. 91; Lamka v. Donnelly, 163 Iowa 255, 143 N.W. 869. One Price, who acted as agent for defendants, interviewed Wilson, of the Wilson Land & Loan Company, agent for Lockband, and testified that Wilson, of said company, said he had a party who had a half section of land in Kansas, of which he described the improvements and incumbrances, and that he would exchange, or thought he would exchange, equity for equity, and he would find out a little later and would see him.

"Q. What was the value placed on the Kansas land an acre? A. $ 25 an acre, with a mortgage of $ 2,000 on it; and I submitted the proposition to Mr. Wilson to change equity for equity and assume everything that was against each property, and I mentioned some taxes and one thing or another. He said, 'I do not know whether my man would do that or not but I can find out, I think, before you have to go home.' I was to come home that evening. Q. You mentioned the value of the Kansas land; what value was placed upon the Des Moines property? A. $ 12,000, with an incumbrance there of something over $ 6,000 or about $ 6,000. Q. Of incumbrance? A. Yes, sir. * * * I went down to the depot--it was nearly train time--John Mullin and myself--and Mr. Wilson come down there and said he had heard from his man and that he would trade, but would rather we would pay some back taxes that was there. I says, 'We can't do that,' I says, 'If we trade, you have got to assume liens and everything, taxes, mortgages and interests up to that time and all back taxes.' We talked it over there until nearly train time--just had a few minutes. He said he would trade that way if John would get the deed back the next day. Well, we just left it that way, verbal contract. John agreed to go and get the deed and get back there not later than two days."

The deed was returned as proposed, and Wilson thus described what occurred:

"I examined the deed at the time of its delivery. The words 'which second party assumes and agrees to pay' were stricken from the deed by John Mullin. The deed was presented wherein the grantee assumed and agreed to pay, this being contrary to the contract. I refused to accept the deed. He then called his brother Dennis Mullin over the phone, and he advised me in the presence of my stenographer, Mrs. Rourk, that Mr. Dennis Mullin had given him authority, and that he would and did then and there erase, or rather drew a line through the words 'which grantee assumes and agrees to pay,' and after that was done he delivered the deed to me...