McClure v. Dee

• Decision Date: 04 February 1902
• Citation: 88 N.W. 1093,115 Iowa 546
• Parties: A. W. MCCLURE, Trustee, v. ELIZA M. DEE and JOHN C. POWER, Trustee, Appellants
• Court: Iowa Supreme Court

88 N.W. 1093

115 Iowa 546

A. W. MCCLURE, Trustee, v. ELIZA M. DEE and JOHN C. POWER, Trustee, Appellants

Supreme Court of Iowa, Des Moines

February 4, 1902

Appeal from Des Moines District Court.--HON. JAMES D. SMYTHE, Judge.

THE facts set out in the petition may be summarized as follows On April 19, 1879, one Warren Dee, being the owner of a tract of real estate which was subject to a judgment in favor of John S. Woolson, sold and conveyed said real estate, for a valuable consideration, to the Western Wheel Scraper Company and the latter, on March 3, 1897, conveyed the same to plaintiff. The deed from Dee contained general covenants of warranty. On October 5, 1897, plaintiff was compelled to, and did, pay said judgment; the amount expended being $ 850. Warren Dee died testate, and his estate was closed and settled prior to the satisfaction of said judgment. Defendant Eliza M. Dee is the wife of Warren Dee. The will of the latter contained the following provisions:

"First. I hereby give and bequeath to my beloved wife, Eliza M. Dee for and during her natural life, all of my property, both real, personal and mixed; and my said wife is hereby authorized and empowered to use said property, as well the principal as the rents and profits and interest, for her support, and for the purpose of supplying all the comforts and luxuries she may desire. But as my wife has no near relatives, it is my purpose and desire that her use of said property be limited to the aforesaid purposes. Second. Subject to the above bequest, I hereby give and bequeath all of the personal property not used and consumed by my wife to John C. Power, as trustee only, and I direct said trustee to convert said property into money and distribute the same as follows. [Here follow the names of a large number of collateral relatives to whom the residue of personal property is to be ultimately distributed. He then disposes of what real estate may be remaining at his wife's death, closing as follows:]" It being my intention to bequeath hereby only such real estate as shall not have been disposed of by my wife, and not to interfere with her control of same as provided by item first hereof. It is further intended that the legacies provided for herein, other than to my wife, are not to take effect or be in force until after the death of my said wife." Since this appeal was taken, Eliza M. Dee has died, and John C. Power is executor of her estate. The estate of Warren Dee, consisting of both real and personal property, was largely in excess of the amount here claimed. Judgment is asked against both Eliza M. Dee and John C Power, trustee, for the sum of $ 850, with interest. The following demurrer was interposed to the petition: "(1) Said cause is barred by the statute of limitation. (2) The facts stated do not entitle the plaintiff to the relief prayed for, in this: (a) Defendants were not parties to the deed upon which this action is based; (b) neither of the defendants has wrongfully converted any property belonging to said Warren Dee to their own use; (c) it appears from the petition and amendment that the property which came into the hands of the defendants under the will of Warren Dee did not vest in them in fee, but for specific purposes, the title to the same not being in the defendants, or either of them." The demurrer was overruled. Defendants electing to stand thereon, judgment for costs was rendered against them. They appeal.

Affirmed.

Power & Power for appellants.

Babb & Babb for appellee.

OPINION

WATERMAN, J.

In disposing of the case, we shall follow counsel in the order of consideration of the questions presented.

According to the earlier common law, an heir was liable for the specialty debts of his ancestor to the extent in value of the assets (real estate) which descended to him. Rawle, Covenants 309, 310; Bacon Abridgement tit. "Heir" (579). In two material respects this rule has been extended,--first by an English statute (3 & 4 W. & M.), which is a part of the common law of this country (O'Ferrall v. Simplot, 4 Iowa 381), and by which such liability was imposed, also, upon devisees (Muldoon v. Moore, 55 N.J.L. 410 (26 A. 892, 21 L. R. A. 89); Rawle, Covenants Section 311). But irrespective of this statute, the provisions of our law making real property liable for the debts of the owner are in line of development of the common-law principle to which we have adverted, and operate to impress such property with a trust to secure payment of the ancestor's debts, when it is found in the hands either of an heir or devisee. Rohrbaugh v. Hamblin, 57 Kan. 393, (46 P. 705, 57 Am. St. Rep. 334) And next an alteration grew out of the statutes of those states (our own among them) which provide for the descent of personality in the same manner and to the same persons as real estate. The effect of these statutes is to impose a liability upon the heir for the value of the personality received, as well as the real estate. Hall v. Martin, 46 N.H. 337. According to the common law, the heir or devisee was not liable for breach of covenant, unless expressly bound. But this rule does not apply to covenants which run with the land. Morse v. Aldrich, 19 Pick. 449. The covenant in Dee's deed was general; that is, against incumbrances, and to warrant and defend the title. A covenant against incumbrances does not usually run with the land, for it is broken as soon as the conveyance is made. Martindale, Conveyance p. 139; Clark v. Swift, 3 Metc. (Mass.) 392. In England such a covenant is coupled with one for quiet enjoyment, that being the form which corresponds with our warranty of title; and in such case it runs with the land, for it is then broken only by eviction. Rawle, Covenants 89; Anderson v. Knox, 20 Ala. 156. Whether the covenant in this case extended in terms to quiet enjoyment does not appear. We think, however, that must be its effect. But the matter is not significant, for the general covenant to warrant and defend the title runs with the land in all cases. 4 Kent Commentaries 528. The heirs and devisees are bound for a breach of this covenant. Of course, to bind either heirs or devisees it must appear that the ancestor's estate was settled and closed before the claim accrued to the covenantee. The petition alleges such to have been the case in this instance. We are of the opinion plaintiff has a right of action for breach of covenant. The case of Rohrbaugh v. Hamblin, cited above, which is quite similar in its facts to the one before us, sustained this conclusion fully.

II. This brings us to the next question presented by the demurrer. Is the claim in suit barred by the statute of limitations? The judgment was a lien on this land when Dee conveyed, and the covenant against incumbrances was therefore at once broken. Harwood v. Lee, 85 Iowa 622, 52 N.W 521. The grantee could have sued at once, but he would have recovered only nominal damages. Id. The warranty of title, which includes an assurance of possession, was not broken until the judgment, which was still a lien, was asserted against plaintiff and satisfied by him in the year 1897. This action was brought in...