Merrill v. Suing
| Decision Date | 19 November 1902 |
| Docket Number | 12,268 |
| Parties | ABEL M. MERRILL v. HENRY B. SUING ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Cedar county. Action in the nature of covenant. Tried below before GRAVES, J. Reversed.
Judgment of the district court reversed and cause dismissed.
James C. Robinson, for plaintiff in error, cited, upon the question of the eviction or surrender of paramount title, Troxell v. Stevens, 57 Neb. 329, and authorities cited.
Addison M. Gooding, for defendant in error Henry B. Suing.
John Bridenbaugh, for defendant in error Robert N. Hurlbut.
BARNES C. OLDHAM and POUND, CC., concur.
This action was one to recover damages for a breach of covenants of general warranty contained in two certain deeds, one of which was given by Robert N. Hurlbut and wife to Abel M Merrill, and one given by said Merrill and wife to the defendant in error Henry B. Suing. It was alleged in the petition that on the 4th day of June, 1886, defendants Robert N. Hurlbut and his wife, Mary, were the owners of lots 8 and 9 in block 27, and lot 15 in block 31 in the village of Hartington, Cedar county, Nebraska; that at said time they duly executed, acknowledged and delivered a mortgage thereon to E. S. Ormsby, trustee, and P. O. Refsell, for the sum of $ 600; that on the 11th day of March, 1889, the defendants Hurlbut and wife, in consideration of the sum of $ 650, duly executed, acknowledged and delivered to the defendant Abel M Merrill a warranty deed, and thereby conveyed to him lots 8 and 9 of block 27. This conveyance was a short form of warranty deed, and contained the usual and ordinary covenants of warranty. It was further alleged that on the said 11th day of March, 1889, the defendant Merrill, and his wife, Mary J. Merrill, entered into the possession of the said premises, and on the 15th day of March, 1889, in consideration of the sum of $ 650, duly executed, acknowledged and delivered to the plaintiff a warranty deed, and thereby conveyed to him said lots 8 and 9 of block 27; that said deed contained the usual covenants of warranty, as follows: It was further alleged that at the date of the execution and delivery of the said deeds the defendants did not have a good and sufficient title to said premises, but on the contrary, the paramount right and title to the same was in the holder of the aforesaid mortgage, and the said mortgage was then and there valid and subsisting as against lots 8 and 9 of said block 27, and the note and accruing interest secured by said mortgage was outstanding, and one William H. Male, by a series of transfers, came into the possession of said mortgage, and became the lawful owner and holder thereof, and on the 22d day of September, 1897, commenced foreclosure proceedings thereon, and by due course of law obtained a decree from the district court of Cedar county, declaring the said mortgage claim to be a first lien upon said premises, and ordering the same to be sold, and said premises were, on the 21st day of February, 1899, sold upon the order of said court; that plaintiff was compelled to surrender, yield and submit to the paramount title so established by said mortgage decree and order of said court, and to pay the purchaser of said paramount title on the 14th day of March, 1899, the sum of $ 393.68, and to pay the further sum of $ 25 as an attorney's fee in such foreclosure proceedings, to plaintiff's damage in the sum of $ 418.68. It was further alleged that the defendants were parties to the foreclosure proceedings, and knew all of the facts relating thereto, and failed and neglected to defend the title, and thereby made breach of their covenants of general warranty and quiet enjoyment, and thereby caused plaintiff to submit to the paramount title aforesaid. The petition concluded with a prayer for a judgment against defendants for $ 418.68, with interest and costs of suit. The action was dismissed as to Mrs. Merrill and Mrs. Hurlbut, and proceeded against Abel M. Merrill and Robert N. Hurlbut, alone. The defendants filed separate demurrers to the petition, which were overruled, exceptions were taken, and thereupon separate answers were filed by them. Defendant Merrill, by his answer, admitted that the defendant Hurlbut and his wife executed and delivered a deed of the premises to him on or about March 11, 1889; admitted that on or about the 15th day of March, 1889, he, together with his wife, executed and delivered to the plaintiff a deed of conveyance for lots 8 and 9 in block 27 in Hartington, Nebraska, subject to a certain mortgage to one Levi H. Monroe, and denied each and every other allegation contained in the petition. It was further alleged in his answer that at and some time prior to the date of the making and delivering of the deeds referred to therein, the defendant Robert N. Hurlbut was the owner of lots 8 and 9 in block 27 and this defendant was the owner of lot 15 in block 31, of Hartington, and that before the execution and delivery of the deed from defendant Hurlbut to this defendant, the plaintiff purchased the said lots 8 and 9 in block 27 from said Robert N. Hurlbut for the price and consideration of $ 650, and requested this defendant to accept a warranty deed for said lots from the defendant Hurlbut, and to convey said lots to him, the plaintiff, by a deed of general warranty, except only as to a mortgage of $ 264 in favor of one Monroe; that this defendant consented to accept said deed, and agreed to convey said lots to plaintiff as requested, and in pursuance of such request and agreement, and without any consideration either paid or promised to this defendant, and solely for the accommodation of the plaintiff, this defendant accepted the deed referred to in said petition, and with his wife executed and delivered to plaintiff the said deed referred to therein. It was further alleged that the entire consideration for the making of the two deeds referred to, viz., $ 650, was paid by the plaintiff to the defendant Robert N. Hurlbut, and this defendant never received any consideration or thing of value for accepting the deed from defendant Hurlbut, and making the deed referred to, to plaintiff, and never was in fact the owner or in possession of said lots 8 and 9 in block 27, but merely took the naked, legal title thereto for the benefit of the plaintiff, who was in fact the owner and entitled to the possession of said lots from and after the execution of the deed from the defendant Hurlbut to this defendant. The defendant specially denied that plaintiff was ever ousted or evicted from said premises, or that he ever surrendered the possession thereof to the holder of any paramount or superior title. A reply was filed denying these facts, and in addition to such denial the reply contained the following allegations: That on the 4th day of October, 1887, the defendant Hurlbut sold and conveyed by warranty deed and for the consideration of $ 2,500 lot 15 in block 31 to the defendant Merrill; that in said deed Merrill assumed and agreed to pay as a part of his purchase price for said lot said mortgage of $ 600, being identical with the one described in his petition as given on the 4th day of June, 1886; Thereupon defendant Merrill filed a motion to strike from the reply all of said new matter, which was contained in paragraphs 3 and 4 thereof, for the reason that such matters did not constitute a proper and legal reply or defense to the matters contained in his answer. The motion was overruled, and the defendant Merrill excepted thereto. He thereupon filed a demurrer to the said paragraphs and the new matter contained therein, because the facts alleged therein were not a proper reply, and did not state facts sufficient to constitute a defense to the facts stated in his answer. The court overruled the demurrer, and defendant excepted. Thereupon the cause was tried upon the pleadings...
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