Hencke v. Johnson

• Decision Date: 14 December 1883
• Parties: HENCKE v. JOHNSON.
• Court: Iowa Supreme Court

62 Iowa 555

17 N.W. 766

HENCKE

v.JOHNSON.

Supreme Court of Iowa.

Filed December 14, 1883.

Appeal from Winneshiek circuit court.

This is an action to recover damages for the breach of the covenants in a deed for certain real estate. The action was aided by an attachment. The defendant, in addition to an answer putting in issue the plaintiff's right of recovery, set up a claim for damages for the alleged wrongful suing out of the writ of attachment. There was a trial by the court, and a judgment for plaintiff for one dollar damages for breach of the covenants in the deed, and for the defendant for $69.85 damages for wrongfully serving out the attachment. Plaintiff appeals.Brown & Portman, for appellant.

Willett & Willett, for appellee.

ROTHROCK, J.

1. The defendant executed and delivered to the plaintiff a deed for certain real estate, with the usual covenants of warranty. It appears that at the time of the conveyance she was not the full owner of the real esstate, and that she owned but an undivided one-third thereof, and that her children, who were minors, owned the other two-thirds. The defendant, at the time of the conveyance, was a widow, and the property conveyed was inherited from her deceased husband by her and her children. At the time she made the deed she was guardian of the children. Afterwards she resigned her guardianship. Some of the children are now of age, and another guardian has been appointed for those who are yet minors. When the deed was made the plaintiff took possession of the property conveyed, and has never been disturbed in the possession, and he has been receiving the rents and profits thereof without molestation from any one. It is the settled law of this state that, until some substantial injury occurs to the grantee in a deed with covenants, no recovery can be had for a breach of the covenant of seizin except for nominal damages. Nosler v. Hunt, 18 Iowa, 212;Boon v. McHenry, 55 Iowa, 202; [S. C. 7 N. W. REP. 503.] In Rawle, Cov. 100, it is said: “In cases where the failure of title has been such as to cause a technical breach of the covenant of seizin, yet not such as to have visited upon the purchaser any loss of the land, it would be obviously inequitable that he should be entitled to have the damages measured by the consideration money, and, while receiving them, still retain the land for whose loss they were intended as equivalents.”

It appears that one Kessey married one of the defendant's children. The plaintiff sought to prove a conversation had by one of plaintiff's attorneys with Kessey about the execution of a deed by the guardian of the minor children to the appellant. This was objected to and the objection was sustained. It appears that plaintiff sought to prove by this conversation that a request was made of...