Newburn v. Lucas

• Decision Date: 14 December 1904
• Citation: 101 N.W. 730,126 Iowa 85
• Parties: JOHN NEWBURN v. HIRAM LUCAS, Appellant
• Court: Iowa Supreme Court

101 N.W. 730

126 Iowa 85

JOHN NEWBURN v. HIRAM LUCAS, Appellant

Supreme Court of Iowa, Des Moines

December 14, 1904

Appeal from Polk District Court.--HON. JAMES A. HOWE, Judge.

SUIT in equity to recover damages for the breach of the covenants of warranty in a deed, and asking that the damages awarded be made a lien upon the property deeded to the appellant in exchange for the land conveyed to the plaintiff. The defendant counterclaimed for a breach of warranty, and asked the reformation of the conveyance to the plaintiff. Judgment for the plaintiff, from which the defendant appeals.

Affirmed.

Henry H. Griffiths and Blake & Blake, for appellant.

C. C Cole, for appellee.

OPINION

SHERWIN, J.

The deed from the appellant to the plaintiff contains the usual covenants of warranty, without reservation of any kind. At the time the conveyance was made--July 8, 1901--the appellant's grantor was in possession of the land, and entitled so to remain until the following March. He had also reserved the growing crops, and was entitled thereto at the time of the appellant's conveyance to the plaintiff. The evidence is not sufficient to warrant the reformation of the deed; it is not the clear and convincing evidence necessary to overthrow a written instrument.

The judgment record in the plaintiff's action against the defendant's grantor does show that Shepherdson was acting as the plaintiff's agent in negotiating the transfer of properties, and it is true that the knowledge thus acquired by him, and the agreement made by him within the scope of his authority, will bind the plaintiff. But conceding this, and the fact that when the trade was pending he stated that when a conveyance of land was made after the 1st of July it was the custom for the grantor to retain the growing crop, the defendant did not rely upon the statement according to his own testimony, nor does it appear that there was any agreement between the plaintiff and Lucas relating to a reservation of the crops and possession for the use and benefit of Hail. Gerald v. Elley, 45 Iowa 322.

There is no merit in the appellant's claim that he was entitled to a judgment on the pleadings. Notwithstanding the verification of his answer and counterclaim, the allegations thereof cannot be taken as true because of an unverified reply. Wright v. Marsh, 2 G. Greene, 94; Taylor v. Runyan, 9 Iowa 522; Wolff v. Hagensick, 10 Iowa 590. Advantage of an unverified pleading can only be taken by a motion to strike. Rush v. Rush, 46 Iowa 648.

And, if the reply was not as specific as the appellant thought it should be, a motion to have it made more specific was the remedy. The petition states a cause of action, and not having been assailed in the court below, it is now too late to raise a question as to the sufficiency of its allegations.

The adjudication pleaded therein was for the purpose only of recovering the costs of that suit and of showing disseisin. The appellant did not plead that judgment as a bar to this action, and cannot now be heard on the question.

There was a breach of warranty in this case, without doubt; indeed, we do not understand that it is seriously contended otherwise. It may be conceded that the plaintiff had full knowledge of Hail's rights under his agreement with the appellant, and still he is entitled to recover. In an action of covenant the deed governs, and the grantor cannot defeat the covenant by parol evidence of the grantee's knowledge of an incumbrance. Barlow v. McKinley, 24 Iowa 69; McGowen v. Myers, 60 Iowa 256, 14 N.W. 788; Van Wagner v. Van Nostrand, 19 Iowa 422.

At the time of the appellant's conveyance to the plaintiff, the corn and onions were unmatured and receiving nourishment from the soil; they were therefore a part of it, and were conveyed by the deed to the plaintiff. Strawhacker v. Ives, 114 Iowa 661, 87 N.W. 669; Hecht v. Dettman, 56 Iowa 679, 7 N.W. 495; Stanbrough v. Cook, 83 Iowa 705, 49

N.W. 1010; Downard v. Groff, 40 Iowa 597.

The serious contention arises over the measure of the plaintiff's damages. The trial court allowed him the value of the corn and onions at the time of the conveyance as we understand the record, and we think this the rule that should be applied in this case. The purpose of the law is to give to an injured party full and adequate compensation for his injury, and hence it is that no rule of damages can be declared which will meet the requirement in all cases. It has been held by this court, and we think it the general rule as well, that in an action upon a covenant against incumbrances, where there is an outstanding lease, the measure of damages is ordinarily the rental value of the land for the unexpired term. Wragg & Sons v. Mead, 120 Iowa 319, 94 N.W. 856, and cases cited. But in that case the damages claimed were for the use of the premises for a special purpose, and this was also true in Alexander v. Bishop, 59 Iowa 572, 13 N.W. 714. In case the incumbrance has been paid by the grantee, the measure of his recovery is the amount...