Hoyt v. McLagan

• Decision Date: 11 May 1893
• Citation: 55 N.W. 18,87 Iowa 746
• Parties: S. A. HOYT, Appellant, v. W. A. MCLAGAN et al., Appellees
• Court: Iowa Supreme Court

55 N.W. 18

87 Iowa 746

S. A. HOYT, Appellant, v. W. A. MCLAGAN et al., Appellees

Supreme Court of Iowa, Des Moines

May 11, 1893

Appeal from Carroll District Court.--HON. J. P. CONNER, Judge.

THE plaintiff brought this action to recover damages for an alleged breach of the covenants of warranty in a deed. The defendant answered, admitting the execution of the deed denying every other allegation, and setting up a counterclaim for damages for an alleged breach of the covenants of warranty in a deed, executed by the plaintiff to him, for lot 1 and the east ten feet of lot 2, block 21, in the town of Carroll, Iowa. The breach claimed is that a certain building situated on said lots belonged to one Sprague. The plaintiff replied, admitting the execution of the deed, and alleging that it was made in pursuance of a written contract, and that by mistake and oversight there was left out of the contract the reservation of the right of Sprague to remove the building; that, prior to the delivery of said deed, the defendant released the plaintiff from liability by reason of said building, by agreement in parol, whereby the plaintiff was induced to deliver said deed. The plaintiff asked that the written contract be re-formed, and that the reservation made with reference to said building be inserted therein, and that the contract, so re-formed, be decreed to be a part of said deed. The case was tried as in equity, and, after the evidence was introduced, the plaintiff dismissed her cause of action without prejudice, and judgment was entered in favor of the defendant on his counterclaim for one hundred and eighty dollars, with interest at six per cent. from February 1, 1890, from which the plaintiff appeals.

Reversed.

Beach & Hoyt and C. C. & C. L. Nourse, for appellant.

S. M Elwood, F. M. Powers and Cole, McVey & Cheshire, for appellee.

OPINION

GIVEN, J.

I.

The appellee contends that "this case can not be tried de novo here because there is no authenticated abstract of the record." The appellee filed an abstract, in which he says, "there are a few material errors in the appellant's abstract (evidently the fault of the printer)," and then points out five particulars wherein he claims the appellant's abstract is erroneous. The appellant filed an additional abstract, admitting that the appellee's abstract is correct as to the three errors last named therein, and denying that it is correct as to the first two, and therewith filed a complete transcript. The transcript shows the appellee's abstract to be correct, and as, by the transcript, we have the complete record before us, we may try the case de novo, it having been tried as in equity in the court below without objection.

II. The appellee insists that, as the plaintiff dismissed her action, she is not entitled to be heard upon her claim for a re-formation of the contract. Her action was upon the covenants in the deed from the defendant to her, and no re-formation is asked as to those covenants. The re-formation asked is of the contract as it relates to the deed from the plaintiff to the defendant, upon which the defendant bases his cause of action. The re-formation asked is in reply to the defendant's action, and the case stands as though the action had been originally brought by the defendant, and the plaintiff had answered, setting up the matters stated in her reply. The prayer for a re-formation of the contract pertains to the defendant's cause of action, and was not withdrawn by the dismissal of the plaintiff's action.

III. The questions before us arise solely upon the defendant's cause of action, stated by way of counterclaim, and the plaintiff's answer thereto, by way of reply. The following facts appear without dispute: On October 30, 1889 these parties entered into a contract in writing, whereby the plaintiff was to convey to the defendant the lots in Carroll, and the defendant was to convey certain lands in Sac county to the plaintiff; each to convey to the other "by good and sufficient warranty deed, free and clear of all incumbrances whatsoever." The deed from the plaintiff to the defendant was to be "subject to lease made to one Nolen, on the northeast corner of said lots." On the same day each executed a deed, with covenants of general warranty, to the other, which deeds, when executed, were left with Mr. Beach "until we got proper abstracts of title." Immediately after the deeds were executed, each party went into the possession of the property for which he had traded, and made improvements thereon, the defendant making extensive and valuable improvements upon the lots in Carroll. One S. S. Sprague owned a building standing on the lots conveyed to the defendant, which building he had a right to remove. No reservation was made in the contract as to this building, nor was any reservation made in the deed to the defendant as to it or to Mr. Nolen's lease. Soon after the execution of the deeds, contention arose between the parties as to Sprague's building, the plaintiff claiming that it was understood and agreed by the defendant that Mr. Sprague had a right to remove his building, and that this right was reserved in their agreement, but omitted from the written contract by mistake and oversight. The defendant denied any such agreement or reservation, and upon this subject there is a conflict in the evidence. The plaintiff's husband who, as her agent, made the contract, testifies plainly and explicitly that such was the agreement, and he is corroborated by several witnesses, who testified to statements made by the defendant tending strongly to show that he understood that he was not to have the Sprague building. His own testimony on that subject stands without corroboration, and is not direct nor convincing. In January,...