ERROR
from the district court of Douglas county. Tried below before
DOANE, J.
AFFIRMED.
Hall
McCulloch & English, for plaintiffs in error, cited
Chapman v. Kimball, 7 Neb. 399; Davidson v
Cox, 10 Neb. 150; Knadler v. Sharp, 36 Iowa
236; Devore v. Sunderland, 11 O., 60; 2 Parsons,
Contracts, 571*; Bethell v. Bethell, 54 Ind. 428;
Craig v. Donovan, 63 Ind. 513.
Arthur
C. Wakeley, contra:
Real
property, as to its tenure, mode of enjoyment, transfer, and
descent, is to be regulated by the lex loci rei sitae.
(Fisher v. Parry, 68 Ind. 465; Kling v. Sejour,
4 La. Ann., 130; Succession of Cassidy, 40 La. Ann.,
837; Succession of Larendon, 39 La. Ann., 952; United
States v. Crosby, 7 Cranch [U. S.], 115; 3 Am. & Eng.
Ency. of Law, p. 567, note 1; Chapman v. Robertson, 6
Paige Ch. [N. Y.], 627; McCormick v. Sullivant,
10 Wheat. [U. S.], 192; Brine v. Hartford Fire Ins.
Co., 96 U.S. 627; Kerr v. Moon, 9 Wheat. [U.
S.], 565; McGoon v. Scales, 9 Wall. [U. S.], 27.)
OPINION
HARRISON, J.
This
action was instituted in the district court of Douglas county
by defendant in error to recover the sum of certain imposed
taxes on the southwest quarter of section 36, township 81,
range 39, in Shelby county, Iowa, remaining unpaid at the
time the land was conveyed to him. A jury was waived in the
district court, and on a trial to the judge thereof judgment
was rendered for defendant in error, and plaintiffs in error
have prosecuted a writ of error to this court. The case is
submitted here on the following agreed statement of facts:
"Upon
this day of , 1890, at the February, 1890, term of said
court, this cause coming on to be tried was heard before his
honor George W. Doane, one of the judges of this court,--a
jury being waived by the parties hereto,--and afterwards,
to-wit, on the 6th day of March, 1890, judgment was rendered
herein in favor of the plaintiff; and whereas the said
defendants are about to prosecute a writ of error from the
decision of the said district court to the supreme court of
the state of Nebraska, it is agreed between the parties
hereto that this cause may be submitted for decision to the
supreme court upon the following agreed statement of facts:
"1. The real estate, for breach of covenants
against incumbrances upon which this suit is brought, is the
southwest quarter section 36, township 81, range 39, in
Shelby county, in the state of Iowa.
"2.
On the 16th day of June, 1886, William J. Chausse and Mercy
Chausse, of Shelby county, Iowa, conveyed said premises by
warranty deed to the defendant Alden K. Riley; that on July
21, 1887, the defendant Alden K. Riley conveyed said premises
to the defendant Annie R. Kinkead; that on October 19, 1887,
Annie R. Kinkead conveyed the said premises to Thomas B.
McCulloch; that on the 7th day of November, 1887, Thomas B.
McCulloch conveyed the said premises to William F. Woods and
Charles W. Sanborn; that on April 11, 1888, the said Woods
and Sanborn conveyed the said premises to the plaintiff
herein, Wallace M. Burroughs, who is the owner thereof.
"3.
That the said real estate was conveyed by the said several
grantors to the said several grantees by deeds of general
warranty, and that all the said several deeds made by the
defendants herein contained, among other things, the
following covenants against incumbrance, to-wit: 'And I,
the said [grantor], for myself, my heirs, executors and
administrators, do covenant with the said [grantee], and with
his heirs and assigns, that I am lawfully seized of said
premises; that they are free from incumbrance,' etc.
"4.
That at all the times of said several conveyances there
existed upon said premises incumbrances other than those
mentioned and excepted in any of said deeds, to-wit, valid
and subsisting tax liens, to the amount as ascertained and
adjudged by the district court.
"5.
That on June 25, 1888, the plaintiff herein was compelled to
pay, and did pay, to one Elsie Goldschmidt, who had redeemed
said property from tax sale, the amount of said taxes,
to-wit, one hundred and fifty-six and 5/100 ($ 156.05)
dollars.
"6. That all of said deeds, with the exception
of the deed from the said Chausse and wife to Alden K. Riley,
were made in the state of Nebraska, and the parties thereto
were residents of the state of Nebraska; and that the said
Chausse deed was made in the county of Shelby and state of
Iowa.
"7.
That, as shown by the petition herein, the plaintiff brings
suit against the prior grantors of said land and not against
his immediate grantors,
William F. Woods and Charles W. Sanborn.
"8.
That under the law of the state of Iowa a covenant against
incumbrance, such as the one in question herein, runs with
the land, and can be sued upon by any grantee, however
remote.
"9.
That all of said deeds were introduced in evidence under the
objection of the defendants.
"10.
That this agreed statement of facts shall constitute the bill
of exceptions herein and be made a part of the record in said
case."
It will
be noticed that the suit was not brought against the
immediate grantors of defendant (plaintiff in court below),
William F. Woods and wife and Chas. W. Sanborn and wife, but
against former grantors in the chain of title who had
executed and delivered warranty deeds to the property, and it
is claimed that the taxes which defendant in error paid were
existing liens at the time of the conveyance by these former
grantors. The plaintiffs in error deny that they are liable
for the taxes in favor of defendant in error, on the ground
that any taxes which were unpaid at the time of the
conveyance by each would be a claim against each in favor
only of his immediate grantee and not in favor of subsequent
and remote grantees in the title with whom they were not
immediately connected in the transaction and had no dealing.
It is conceded that by the law of Nebraska, where the deed to
defendant in error was executed, the covenant against
incumbrances is a personal one and does not run
with the land, but is broken as soon as made, if there is an
existing incumbrance; hence, in Nebraska, action can be
maintained only by or between the immediate parties to the
covenant. It further follows that if the law of this
state--the law of the place of contract and forum of the
suit--is to be applied to the facts in this action, and
prevail, the judgment of the district court was wrong and
must be reversed. It is further agreed that in Iowa a
covenant against incumbrances, such as the one in this case,
runs with the land, and may be taken advantage of by any
grantee against his immediate grantor, or any grantor,
however remote, in the chain of title, who conveyed with the
incumbrance existing, by deed containing the covenants. If,
therefore, the law of Iowa--the law of the place where the
land which is the subject of the conveyance is situate--is to
govern the rights and remedies of the parties, then the
judgment of the district court was right and should not be
disturbed.
Counsel
for plaintiff in error cite the case of Bethell v
Bethell, 54 Ind. 428, as sustaining their position, also
Craig v. Donovan, 63 Ind. 513. The case of
Bethell v. Bethell, supra, held: "Where a deed
is executed in this state between citizens thereof conveying
lands situated in another state, without any covenants, the
law of the latter state cannot be made to extend beyond her
borders, so as to make such deed contain a covenant of
seizin." In the text of the opinion it was stated:
"The supposed covenant in this case, then, was one that
did not run with the land. It was purely personal and broken
as soon as entered into. It was not so connected with the
land that any subsequent grantee thereof could take advantage
of it. The question is therefore narrowed down to this: Can a
deed executed in Indiana between citizens thereof, containing
no covenants whatever according to the law of Indiana, be
held, by virtue of the law of Missouri, where the land lies,
to contain a covenant not running with the land, but broken
as soon as entered into? We think this question
must be answered in the negative. A covenant of seizin, not
running with the land, is purely a personal covenant, broken
as soon as made, and has nothing whatever to do with the
transmission of the title to the land. As a general rule, the
lex loci contractus determines the construction and
effect of contracts; and we think that where a deed is made,
as above stated, the question whether it contains such a
covenant is to be determined by the law of the place where it
is made." It will be noticed that this case does not
decide the exact point in dispute in the case at bar, but is
confined to holding that the law of the state where the land
is situated cannot be invoked to read into the deed a
covenant which is not there expressed in terms, and which the
law...
