Harwood v. Lee

• Decision Date: 26 May 1892
• Citation: 52 N.W. 521,85 Iowa 622
• Parties: W. H. HARWOOD, Appellant, v. J. S. LEE, Appellee
• Court: Iowa Supreme Court

52 N.W. 521

85 Iowa 622

W. H. HARWOOD, Appellant, v. J. S. LEE, Appellee

Supreme Court of Iowa, Des Moines

May 26, 1892

Appeal from Polk District Court.--HON. CHARLES A. BISHOP, Judge.

ACTION on the covenants against incumbrances in a deed. The court below dismissed the action and rendered judgment against the plaintiff for costs, from which he appeals.

Affirmed.

Read & Read, for appellant.

L Twining and Macomber & Locke, for appellee.

OPINION

KINNE, J.

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: "First. 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 fifth principal meridian, Iowa, with convenants of warranty against incumbrances, except a mortgage of two hundred and sixty-two dollars and seventy-five hundredths dollars ($ 262.75). Second. 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 fifth principal meridian 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 the 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 the plaintiff should assume and pay off one-third of such whole incumbrance. Third. That before the commencement of this suit the 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 the plaintiff thereupon became the owner and holder thereof. Fourth. 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 the plaintiff; that the claim for such taxes paid was also assigned by said Lyons to the plaintiff, and the plaintiff is now the owner and holder thereof. The court finds as conclusions of law that the 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."

I. 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 601, 44 N.W. 897; Bradshaw v. Crosby, 151 Mass. 237, 24 N.E. 47. See, also, Brandt v. Foster, 5 Iowa 287; Kane v. Mink, 64 Iowa 84, 19 N.W. 852. It appears, however, in the case at bar, that the covenantee, Harwood, did not extinguish the incumbrance. He purchased...