Meservey v. Snell

• Decision Date: 05 April 1895
• Citation: 62 N.W. 767,94 Iowa 222
• Parties: MESERVEY v. SNELL.
• Court: Iowa Supreme Court

94 Iowa 222

62 N.W. 767

MESERVEY

v.SNELL.

Supreme Court of Iowa.

April 5, 1895.

Appeal from district court, Webster county; J. L. Stevens, Judge.

Action at law to recover on account of an alleged breach of warranty in a conveyance of land. There was a trial by the court without a jury, and a judgment for the plaintiff. The defendant appeals. Affirmed.Frank Farrell, for appellant.

Botsford, Healy & Healy, for appellee.

ROBINSON, J.

In July, 1866, the defendant, for the consideration of $150, conveyed to the plaintiff 40 acres of land in Webster county. The deed of conveyance contained a covenant in words as follows: “And we covenant to warrant and defend said premises against the lawful claims of all persons whomsoever.” The plaintiff then conveyed the land by warranty deed to Patrick Connors. The title of the defendant was derived from the act of congress approved September 28, 1850, which granted to the state of Arkansas and other states swamp and overflowed lands within their limits, and through acts of the general assembly of this state. The land was within the limits of the grant made to the state of Iowa by the act of congress approved May 15, 1856, to aid in constructing a railway from Dubuque to a point on the Missouri river near Sioux City, and was claimed by the beneficiaries of the grant as being a part of it. About the year 1880, William Ragan, a grantee of the railway company which claimed the land, procured, through the government land office, a cancellation of the swamp-land entry, and then obtained from the United States government a certificate of the land to the beneficiary of the railroad grant. At the time of the cancellation of the swamp-land entry, the officials of the land office required that notice be given to interested parties; but none was given to the plaintiff, nor to her grantee, Connors. After the swamp-land entry was canceled, Ragan instituted against Connors an action to recover the land, and obtained judgment for its possession. Connors then purchased the outstanding title. The plaintiff was not made a party to the action, and neither she nor the defendant had any notice of it. After judgment was rendered in the action against Connors, and after he had purchased the outstanding title, he commenced an action against the plaintiff to recover damages for a breach of her warranty to him. In that action she successfully defended the title she had acquired from the defendant, asserting its validity, and claiming that the cancellation of the swamp-land entry was invalid. After the action against her was commenced, she gave to the defendant notice of it, and demanded that he appear and defend the title acquired from him. He failed to appear, and she made the defense at a cost to her of $50 for attorney's fees in the district court, and $57.50 attorney's fees and $5 as expenses in the supreme court, to which an appeal was taken. She seeks to recover for those sums, and obtained judgment for them in the district court. The appellant contends that, as the title he transferred to the plaintiff was sustained in the action against her, he is not liable on his warranty, while she claims that, as the swamp-land entry under which he claimed had been canceled, the title under the railroad grant appeared to be superior to that she had acquired from him, and that it was his duty to protect what he had conveyed.

1. The form of warranty given in section 1970 of the Code is as follows: “And I warrant the title against all persons whomsoever.” It has been held to be the same in legal effect as the common-law covenant of general warranty. Funk v. Creswell, 5 Iowa, 63, 82; Rawle, Cov. § 116. That is said to be a covenant “to warrant and defend the title against the lawful adverse claims of all persons whomsoever.” Tied. Real Prop. § 858. In legal effect it is much the same as a covenant for quiet enjoyment. Id. § 855. Such covenants do not protect the grantee against every adverse claim or suit, however unfounded, for which the grantor is not responsible, but only against persons making adverse claims based upon a legal foundation. Akerly v. Vilas, 23 Wis. 222;Gleason v. Smith, 41 Vt. 293;Underwood v. Birchard, 47 Vt. 306;Noonan v. Lee, 2 Black, 499; Devl. Deeds, § 932. It is not essential to a breach of the covenant of warranty of title that there be an actual eviction. A constructive eviction is sufficient. Funk v. Creswell, supra; Brandt v. Foster, 5 Iowa, 289;Eversole v. Early, 80 Iowa, 604, 44 N. W. 897. The case of Yokum v. Thomas, 15 Iowa, 67, was an action upon the covenants of a deed which are stated to have been that the grantor “is lawfully seised, that he has a good right to convey, that the premises are free from incumbrance, and that he will warrant and defend.” The facts found were that the grantor had entered the land with a land warrant, and conveyed it to the plaintiff; that afterwards an assignment of the location and warrant was obtained from the grantor by fraud, and that upon the assignment so obtained a patent...