Medler v. Hiatt
| Decision Date | 28 November 1856 |
| Parties | Medler v. Hiatt |
| Court | Indiana Supreme Court |
From the Randolph Circuit Court.
The judgment is reversed with costs. Cause remanded.
J Smith, for appellant.
W. A Peelle and T. A. Browne, for appellee.
Hiatt sued Medler upon two promissory notes, each for the payment of 100 dollars.
The defendant's answer to the complaint avers that the notes sued on were given by the defendant for the purchase-money of certain lands which are described, and which, by deed in fee, were conveyed to him by the plaintiff. That in and by said deed, it was covenanted, 1. That the lands are unincumbered excepting the dower right of one Catharine Hiatt; 2. That the grantor is lawfully seized; 3 That he will warrant and defend against all claims whatsoever, excepting said dower right. It is alleged that a stream of water called Cabin creek runs through the lands, and that at the time of the conveyance there was across Cabin creek, a short distance below said lands, a dam which backed the stream upon them, so as to overflow a large quantity thereof, viz., ten acres, which lands so overflowed are thereby damaged 200 dollars. And further, that the right so to back the water had been obtained from one Jether Hiatt, a former owner of the lands, and was, at the time of said conveyance, an easement and an incumbrance existing thereon, and that it still does exist thereon to the defendant's damage, etc., wherefore the consideration of the notes has failed.
The plaintiff replied, inter alia, as follows: "That the defendant, when he purchased the lands, well knew of the existence of said dam, and also, at the time and before he purchased, he knew of such pretended right to flow back the water." To this the defendant demurred, but his demurrer was overruled.
There being issues of fact, the cause was submitted to a jury, who found for the plaintiff 210 dollars, the full amount of the notes and interest.
New trial refused, and judgment.
It is conceded that the action of the Court, in overruling the demurrer, raises the main question in the cause. And in support of that ruling it is insisted that, as the appellant received a deed for the lands, with full notice of the dam and the right to continue it, the law presumes that he took the conveyance subject to the incumbrance.
The rule of decision on this subject, as evinced by various authorities, is, to some extent, unsettled. None of the authorities, however, sustain the position that mere notice to the vendee, at the time he receives his deed, of an existing incumbrance, excludes it from the operation of an express covenant against incumbrances. To produce such exclusion, there must, in addition to notice, be something in the transaction of sale which conduces to show that the parties did not intend that the incumbrance should be within the covenant. Where, at...
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