Halvorson v. Mullin
| Decision Date | 16 February 1916 |
| Docket Number | No. 30215.,30215. |
| Citation | 156 N.W. 289,179 Iowa 293 |
| Parties | HALVORSON v. MULLIN ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Taylor County; 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. Judgment for plaintiff reversed, and dismissal of counterclaim affirmed.W. M. Jackson and G. B. Haddock, both of Bedford, for appellants.
Henry & Henry, of Des Moines, and J. R. Plummer, of Clearfield, for appellee.
On and prior to March 16, 1910, defendants owned lot 3 of Everett's subdivision 1 of the Official Plat of N. W. 1/4, N. W. 1/4, section 4, in township 78 N. of range 24, west of P. M. in Des Moines, and one Emel Lockband owned the S. E. 1/4 of section 24 and the N. E. 1/4 of section 25 in township 28 N. of range 28 in Gay county, Kan. They negotiated an exchange through agents, one Price acting for the Mullens 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 Mullen had obtained the consent of Dennis Mullen 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 Mullen knew nothing of such change and never consented thereto.
[1] 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 was 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 Supp. 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 the deed signed by the Mullens from the Wilson Land & Loan Company 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.
[2] If, upon filling in the name of the grantee, the conveyance related back to the date of the delivery of the deed by John Mullen 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 Mullens were not divested of title until the name of the grantee was inserted. The evidence leaves no doubt but that, after the deed was signed, John Mullen 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 Mullens then ceased to own the property, and any court would have recognized the equitable title as in Lockband independent 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 of an owner depositing 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, 68 Am. St. Rep. 326. 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 some one 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.
[3] 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...
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