Nunngesser v. Hart

• Decision Date: 08 February 1904
• Parties: GEORGE W. NUNNGESSER, Appellee, v. PETER HART, Appellant
• Court: Iowa Supreme Court

98 N.W. 505

122 Iowa 647

GEORGE W. NUNNGESSER, Appellee, v. PETER HART, Appellant

Supreme Court of Iowa, Des Moines

February 8, 1904

Appeal from Guthrie District Court.--HON. J. H. APPLEGATE, Judge.

ACTION to recover damages arising out of an alleged breach of the warranty in a deed conveying real estate. A demurrer addressed to the petition was overruled, and, the defendant electing to stand upon the ruling, and refusing to plead further, there was judgment against him for the amount of plaintiff's demand with costs. From this judgment he appeals.

Affirmed.

R. E Duffield and E. R. Sayles for appellant.

F. E Gates for appellee.

OPINION

BISHOP, J.

The petition recites that on September 26, 1900, a contract in writing was entered into between plaintiff and defendant and, quoting from the writing, "whereby the said Peter Hart has this day sold unto George W. Nunngesser the following described premises, situated in the county of Adair, Iowa," etc. The writing provides that the purchase price is to be paid, $ 500 on the execution of the contract; $ 3,500, January 10, 1901; and the balance in yearly payments, secured by mortgage on the lands. The contract concludes: "Peter Hart agrees to give George W. Nunngesser a good and sufficient warranty deed, also an abstract, showing good and perfect title, and possession on March 1st, 1901, if payments are made in accordance with this contract." It is then alleged in the petition that every condition required of plaintiff by the terms of the contract was performed, and that on January 8, 1901, pursuant to said contract, defendant executed and delivered to plaintiff a deed of the lands in question, which deed contained full covenants of warranty as to title, and against liens and incumbrances. Plaintiff now says that the conditions and covenants of said contract and deed have been violated and broken, in that the defendant has refused and neglected to pay the taxes on the lands for the year 1900, and plaintiff has been compelled to pay the same, and judgment is demanded for the amount so paid. The demurrer is based upon the thought that plaintiff became the owner of the lands at the time the contract was made, that the taxes were not then a lien on the lands, and that plaintiff became liable to pay such taxes when the same accrued.

It is to be observed that the contract makes no reference to the matter of the payment of taxes. As between vendor and vendee tax liens attach to real estate on and after December 31st in each year. Code, section 1400. Taxes on real estate are required to be paid by the owner, and the question at once arises, who was the owner of the property in controversy, within the meaning of the statute, on January 1, 1901? The answer to this question must depend upon the construction that is to be put upon the contract of September 26, 1900, having in view what was absolutely done by the parties thereunder. It is true that the contract reads, "has this day sold," but this does not necessarily control the construction of the agreement. The entire instrument must be considered, that we may ascertain the intent of the parties. A reading in full makes it clear that the instrument was not intended as a conveyance, but, rather, as an agreement for conveyance. "If it [the contract] contains words of present assurance, these words afford a presumption that an executed conveyance was...