Jerald v. Elly

• Decision Date: 09 June 1879
• Citation: 51 Iowa 321,1 N.W. 639
• Parties: D. C. JERALD, APPELLANT, v. THOMAS ELLY, APPELLEE.
• Court: Iowa Supreme Court

51 Iowa 321

1 N.W. 639

D. C. JERALD, APPELLANT,

v.THOMAS ELLY, APPELLEE.

Supreme Court of Iowa.

Filed June 9, 1879.

Appeal from Mitchell district court.

Action at law upon the covenants of seizin and against incumbrances in a deed for land executed by defendant to plaintiff. There was a verdict and judgment for defendant. Plaintiff appeals. The facts of the case appear in the opinion.L. M. Rice, for appellant.

D. W. Poindexter, for appellee.

BECK, C. J.

--I. The petition alleges the execution of the deed containing covenants of seizin and against incumbrances, which is made an exhibit, and that when it was executed defendant was not lawfully seized of all the lands conveyed; that they were not free from incumbrances, and that defendant did not have good, right and lawful authority to sell the same. It is then averred that the Milwaukee and St. Paul Railroad Company “owned and held, and were in actual exercise of the rights of occupancy of, and were entitled to the right of way thereto, some six acres, being a strip one hundred feet wide, etc.,” and “plaintiff never received, and was not by said conveyance, entitled to the possession or right of possession of said six acres.” The answer denies, generally, the allegations of the petition.

The testimony shows that the railroad company named in the petition actually occupied a right of way as alleged, and that such occupation had been for several years. No testimony was offered by either party as to the right of such occupancy. Plaintiff did not introduce evidence to show that it was based upon right, nor did defendant offer to show that it was without right. The court gave the following instructions:

“4. The deed introduced in evidence by the plaintiff contains full and complete covenants against incumbrance on the land, and this covenant is broken, if at the time the deed was made and delivered, the railroad company had a valid right of way for its track over and across the farm or any part of it, but under the issue the burden is on the plaintiff to show by the evidence that such a right of way was then owned by said company.

5. It would not be sufficient to show that the company used and exercised ownership over such a privilege, but it must be shown that it had a valid right to do so, and when the deed was made and delivered.”

These instructions are complained of as erroneous.

II. The alleged right of way of the railroad company upon the land is regarded by counsel on both sides of the case as an incumbrance, and counsel seem to concede that if it be shown to exist, it constitutes a breach of the covenant of the deed against incumbrances. This is in accord, we think, with the authorities. See 2 Washburn on Real Property, p. 659; 2 Hilliard on Real Property, p. 391. This court has held that in an action to recover upon the covenant of seizin, wherein the plaintiff alleges that the defendant was not seized of the land, was not the lawful owner, and such allegation is put in issue by the denial of the defendant, the onus rests upon him to show his seizin, and not upon the plaintiff to show defendant...