Rooney v. Koenig

• Decision Date: 19 July 1900
• Citation: 83 N.W. 399,80 Minn. 483
• Parties: ROONEY v. KOENIG et al.
• Court: Minnesota Supreme Court

80 Minn. 483

83 N.W. 399

ROONEY

v.KOENIG et al.

Supreme Court of Minnesota.

July 19, 1900.

Appeal from district court, Mower county; John Whytock, Judge.

Action by M. J. Rooney against John Koenig and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Syllabus by the Court

1. Where land is conveyed by a deed of general warranty, any superior outstanding title subsequently acquired by the grantor will inure to the benefit of the grantee and his assigns.

2. Where the only reference in a warranty deed to a mortgage on the land is to except it from the covenant against incumbrances, the exception does not extend to or affect the covenant of warranty, and any title thereafter acquired by the grantor by the foreclosure of the mortgage will inure to the benefit of the grantee and his assigns. Manufacturing Co. v. Zellmer, 50 N. W. 379,48 Minn. 408, followed.

3. In such a case, parol evidence of an agreement by the grantee to assume and pay the mortgage as a part of the purchase price is not competent to modify the covenant of warranty or restrict its legal operation. Shepherd & Catherwood, for appellant.

Lafayette French and A. W. Wright, for respondents.

START, C. J.

This is an action of ejectment to recover possession of 40 acres of land in the county of Mower, described as the N. W. 1/4 of the N. E. 1/4 of section 21, township 101, range 16. The complaint alleged generally that the plaintiff was the owner in fee of the land, and entitled to the possession thereof, which was unlawfully withheld by the defendants. The answer admitted that the defendants were in possession, denied plaintiff's title, and alleged that they were the owners in fee and entitled to the possession of the land. The trial court found, in general terms, that the plaintiff was not, but that the defendants were, the owners in fee of the premises and entitled to the possession thereof, and ordered judgment accordingly. It was so entered, and the plaintiff appealed from the judgment.

It is essential to a correct understanding of the plaintiff's assignments of error to state somewhat in detail the special facts of this case. On January 26, 1871, Matthew Rooney was the owner of the N. E. 1/4 of section 21, and on that day he executed a mortgage, which was duly recorded, on the N. 1/2 thereof, to Moses Gould, to secure the payment of $300. This mortgage was foreclosed, and the premises sold, on November 15, 1873, to Ormanzo Allen, for $451.55, the amount of the mortgage debt, interest, and costs, and the usual sheriff's certificate of sale was executed to him, which was duly recorded on December 4, 1873. Thereafter, and on December 31, 1873, Matthew Rooney duly conveyed, by warranty deed, to Patrick H. Rooney and Frank J. Rooney, his sons, the W. 1/2 of his N. E. 1/4, which was duly recorded on the 9th day of January following. The consideration named in this deed was $1,000, and its covenants were as follows: ‘And the said Matthew Rooney, party of the first part, his heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said parties of the second part, their heirs and assigns, that at the time of the ensealing and delivery of these presents he is well seised of the premises above conveyed, as of a good, sure, perfect, absolute, and indefeasible estate of inheritance in law in fee simple, and has good right, full power, and lawful authority to grant, bargain, sell, and convey the same in manner and form aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, and incumbrances of what kind or nature soever, except a mortgage for $300 and interest; and the above-bargained premises in the quiet and peaceable possession of said parties of the second part, their heirs and assigns, against all and any person or persons lawfully claiming or to claim the whole or any part thereof, the said party of the first part shall and will warrant and forever defend.’ Matthew Rooney, on the same day that he made the deed to his sons, also conveyed, by warranty deed, to his daughter May Ann Rooney, the N. E. 1/4 of his N. E. 1/4. The deed contained the same covenants, and exception in the covenant against incumbrances, as the deed to his sons. On November 14, 1874, the holder of the sheriff's certificate of sale assigned it to Matthew Rooney upon being paid the sum necessary to redeem the land from the mortgage sale. The assignment was duly recorded November 2, 1875. Patrick H. Rooney conveyed all of his interest in the N. W. 1/4 of the N. E. 1/4-the 40 acres in question-to Frank J. Rooney, and the deed was duly recorded on the 13th day of March next thereafter. A judgment against Frank J. Rooney for $179.60 was duly docketed in the county of Mower on January 8, 1879, and all of his interest in the 40 acres so deeded to him was duly sold. November 27, 1880, on execution issued on the judgment, to Daniel R. Noyes, for the sum of $235.20, paid therefor by him, and the usual sheriff's certificate of sale was executed to him and duly recorded on December 8, 1880. No redemption was made from this sale, and on March 18, 1890, Noyes conveyed the land to Peter Meurer by warranty deed for $250, who on November 27, 1894, conveyed it by warranty deed to the defendants for $600, paid by them. These deeds were duly recorded on May 22, 1890, and December 6, 1894, respectively. On August 30, 1895, Matthew Rooney made a warranty deed...