Johnson v. Trump

• Decision Date: 23 October 1913
• Citation: 143 N.W. 510,161 Iowa 512
• Parties: JOHNSON ET AL. v. TRUMP ET AL.
• Court: Iowa Supreme Court

161 Iowa 512

143 N.W. 510

JOHNSON ET AL.

v.TRUMP ET AL.

Supreme Court of Iowa.

Oct. 23, 1913.

Appeal from District Court, Lucas County; C. W. Vermilion, Judge.

Action to recover damages for alleged deficiency in quantity of land conveyed. From a verdict and judgment for plaintiffs, the defendants appeal. Reversed.Stuart & Stuart, of Chariton, for appellants.

Hickman & Wells, of Chariton, for appellees.

WITHROW, J.

I. On the 18th day of February, 1911, the appellants, Elizabeth Trump and A. G. Trump, made conveyance to the appellees of certain real estate in Lucas county. The deed under which appellees claim their rights in this action was as follows: “Know all men by these presents: That we, Elizabeth Ruth Bonnet Trump and A. G. Trump wife and husband, of the county of Clark and the state of Missouri, for the consideration of eight thousand and six hundred dollars ($8,600.00) hereby convey to Elmer G. Johnson and Myrtle Johnson, of the county of Lucas and state of Iowa, the following described real estate, situated in the county of Lucas and state of Iowa, to wit: The E. 1/2 of the S. W. 1/4 of section 6, township 71, range 21. And warrant the title of the same against all persons whomsoever. In witness whereof we have set our hands this 18th day of February, 1911. Elizabeth Ruth Bonnet Trump. A. G. Trump.” This conveyance was executed in pursuance of the terms of a written contract previously entered into between E. G. Johnson, one of the appellees, and A. G. Trump and Elizabeth Trump, the name of the latter appearing as having been signed “by A. G. Trump,” her husband. In the contract the same description and consideration were stated; it also providing that all the right, title, and interest were to be conveyed. The title of the real estate at the time of the contract and deed was in Mrs. Trump. Of the consideration named one-half was paid in cash, and for the remainder note and mortgage were given, the mortgage being upon the real estate purchased. At some time after the conveyance and taking possession, Johnsons, the appellants, claim to have discovered that the tract conveyed to them was short in quantity, and that a strip off the south end containing about five acres was owned by another. They brought this action at law to recover the value of such strip of land, the theory upon which such action was brought being stated in their amended and substituted petition as follows: “That the said E. 1/2 of the S. W. 1/4 of section 6, so conveyed by defendants to plaintiffs, by the government survey contains full 80 acres of land, and was so purchased by plaintiffs and conveyed by defendants; but, by reason of the facts hereinafter stated, defendants at the time of said conveyance were not seised of and did not own, and could not convey to plaintiffs, the title to a strip of land off the south end of said 80 acres, of 5 acres in extent and of the reasonable value of $120 per acre, in the sum of $600. Plaintiffs further state that said strip of land was at the time of said conveyance in the possession and control of one George Y. Bonnet, who was named as a codefendant, and from whom possession had been demanded by plaintiffs, and had been refused. Plaintiffs further state that they are informed and believe that said defendant George Y. Bonnet has been in open, notorious, and continuous possession of said strip of land for more than 10 years prior to the date of said conveyance to plaintiffs. But whether such possession has been under claim of right or color of title and adverse to plaintiffs, said grantees, is unknown to these plaintiffs.” They plead that the title to the E. 1/2 S. W. 1/4, including the strip of land, was warranted to them in the conveyance, and that the grantors failed and refused to procure seisin and possession of said strip for the plaintiffs, appellees, and have refused to indemnify them for the loss of such land. The prayer is in the alternative, either that they be granted possession of said strip, and that Bonnet be ejected from it, or if the court find the title and right of possession to be in Bonnet, they then ask judgment against the defendants for its value. The defendants for answer pleaded the conveyance and the receipt of the consideration; that at the date of the sale the land was inclosed on the south end by an osage orange hedge, which had existed for 40 years, it having been planted in 1870, at which time the then owners of the land had it surveyed, and planted said fence on and along the south side on what was then determined by such survey to be the south line of said 80 acres, and that it has so been recognized by the subsequent and adjoining owners. They aver that plaintiffs examined the tract of land and the fences inclosing it before purchasing, and knew as much as did the defendants as to the lines, and that they offered to defendants the sum of $8,600 for said tract. They also aver that there had been for 40 years a public highway 60 feet in width running east and west along the south line of said tract, all of which plaintiff knew. They say that the conveyance to plaintiffs was of the E. 1/2 S. W. 1/4 of section 6, as it now is and has been for 40 years, and that they received all that they purchased. They also plead the statute of limitations against plaintiffs' claim. The defendant George Y. Bonnet adopted the averments in the answer of his codefendants. For reply the plaintiffs denied that they had, prior to their purchase, any knowledge or information that the tract purchased by them was not a full 80-acre tract. That they bought the land at $107.50 per acre, a total of $8,600, and if defendants knew that there was less than 80 acres in the tract, they concealed such fact from the plaintiffs. At the conclusion of the evidence for the plaintiffs they dismissed their action against Bonnet, and upon the submission of the case to the jury a verdict was returned in favor of plaintiffs for $434. Judgment was entered on this verdict against the defendants, from which they appealed.

II. During the progress of the trial evidence was introduced, over the objections of the appellant, tending to show that at the time of the execution of the contract it was agreed and understood that the land was being purchased at the price of $107.50 per acre, which for 80 acres would amount to the full consideration named and paid. Evidence also was introduced, showing the value per acre of the land, to determine the amount of recovery upon the theory of the case advanced by the appellees. All of this evidence was objected to, and its admission is assigned as error. The trial court gave to the jury certain instructions, stating the rule adopted by it as to the right of recovery, the giving of which is assigned as error, and refused certain instructions requested by the appellant, and error is charged because of such refusal. The core of the contention, about which center all objections as to evidence and instructions as above noted, is the question as to the right to recover as upon a breach of covenant of warranty for a shortage in the land conveyed, where the boundaries of the conveyed tract are visible and have been recognized and acquiesced in by the adjoining proprietors for such length of time as, under the law as between them, determines the true line, and when the conveyance is by general description, as the E. 1/2, S. W. 1/4, for a given consideration, and contains no other statement as to quantity.

[1] III. It is settled by a long line of our own cases, as well as by the decisions of the courts generally, that where adjoining proprietors have acquiesced in a certain line, with possession up to it for a period of 10 years, such is to be taken as the true boundary line between them. Davis v. Curtis, 68 Iowa, 66, 25 N. W. 932;Miller v. Mills County, 111 Iowa, 654, 82 N. W. 1038;Kulas v. McHugh, 114 Iowa, 188, 86 N. W. 288;Corey v. Ft. Dodge, 118 Iowa, 742, 92 N. W. 704;Handorf v. Hoes, 121 Iowa, 79, 95 N. W. 226. The record in the present case, as shown by the pleadings of both parties and by the evidence, permits no doubt that a prior owner of the land which is the subject of the conveyance in controversy and his neighboring owner on the south, to settle the true boundary, adopted a hedge fence as the true line between them, and this was continuously so recognized...