Harwood v. Lee

• Citation: 85 Iowa 622,52 N.W. 521
• Parties: HARWOOD v. LEE.
• Decision Date: 26 May 1892
• Court: United States State Supreme Court of Iowa

85 Iowa 622

52 N.W. 521

HARWOOD

v.LEE.

Supreme Court of Iowa.

May 26, 1892.

Appeal from district court, Polk county; CHARLES A. BISHOP, Judge.

Action on the covenants of a deed against incumbrances. The court below dismissed the action, and rendered judgment against plaintiff for costs. He appeals.Read & Read, for appellant.

L. Twining, and Macomber & Locke, for appellee.

KINNE, J.

1. This action was tried to the court, a jury having been waived. The district court found the facts and conclusions of law based thereon as follows: “(1) On the ______ day of ______, 1885, the defendant, J. S. Lee, executed to the plaintiff a deed of conveyance for the south half (1/2) of the southwest quarter (1/4) of section twenty-one, (21,) township one hundred, (100,) range twenty-five (25) west 5th P. M., Iowa, with covenants of warranty against incumbrances except a mortgage of two hundred and sixty-two dollars and seventy-five hundredths dollars, ($262.75.) (2) That at the time of the execution and delivery of said deed the said premises, together with the northeast quarter of section thirty-three, township one hundred, range twenty-five west 5th P. M., Iowa, was in fact incumbered by a mortgage of seven hundred and eighty dollars and sixty-three one-hundredths dollars, ($780.63,) bearing interest at eight per cent. from December 16, 1882. The said sum of two hundred and sixty-two dollars and sixty-five hundredths ($262.65) mentioned in the deed to plaintiff being the one-third (1/3) part of such whole incumbrance, and it being understood by both parties, at the time of making the deed, that plaintiff should assume and pay off one third of such whole incumbrance. (3) That before the commencement of this suit plaintiff, in order to discharge the premises so conveyed to him from the lien of said mortgage, the holder thereof having refused to release the said premises except upon payment and receipt by him of the entire sum secured by the mortgage, paid W. W. Lyons, the holder of said mortgage, the sum of nine hundred and seven dollars and twenty-hundredths dollars, ($907.20,) and the said mortgage and the notes secured thereby were assigned and transferred to the plaintiff by said Lyons, and plaintiff thereupon became the owner and holder thereof. (4) That by the terms of said mortgage the taxes upon said land covered thereby, if paid by the holder of said-mortgage, should be secured by such mortgage, and that said Lyons, as the holder of said mortgage, had paid the sum of one hundred and twenty-six dollars and twenty-hundredths dollars ($126.20) delinquent tax levied upon and assessed against the lands covered by said mortgage other than those conveyed to plaintiff; that the claim for such taxes paid was also assigned by said Lyons to the plaintiff, and plaintiff is now the owner and holder thereof. The court finds as conclusions of law that plaintiff being the holder of said mortgage by assignment, and having taken no step to exhaust his remedy on the same by foreclosure or otherwise, this action is prematurely brought, and should now be abated.”

2. It is contended that the law in this state is that a covenant against incumbrances is broken as soon as made, when there is an outstanding lien or incumbrance at the time, and that the right of action accrues in such a case to the covenantee, immediately; that the grantee need not wait until he is evicted. And if the grantee extinguishes the incumbrance he may recover the amount so paid. If he has not extinguished it he can recover only nominal damages. As to this there can be no controversy. Funk v. Cresswell, 5 Iowa, 62;Knadler v. Sharp, 36 Iowa, 232;Eversole v. Early, 80 Iowa, 604, 44 N. W. Rep. 897; Bradshaw v. Crosby, (Mass.) 24 N. E. Rep. 47. See, also, ...