Royer v. Foster
| Decision Date | 08 December 1883 |
| Citation | 62 Iowa 321,17 N.W. 516 |
| Parties | ROYER v. FOSTER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Polk circuit court.
The plaintiff claims of the defendant $400 on account of an alleged breach of the covenants of seizin and warranty in a deed conveying 80 acres of land. The cause was tried to the court, and judgment was rendered for the defendant. The plaintiff appeals. The facts are stated in the opinion.Nourse & Kauffman, for appellant.
Barcroft, Bowen & Sickmon and Brown & Dudley, for appellee.
1. The material facts of the case are as follows: In July, 1856, one J. W. Baird, being the owner of 280 acres of land, including the 80 acres involved in this controversy, executed a mortgage thereon to one M. Moore, to secure the payment of $1,300. Thereafter foreclosure proceedings were instituted in the Dallas district court, and on the twentieth day of October, 1857, judgment of foreclosure was entered by default. In the foreclosure proceeding an original notice was issued, in the usual form, directed to J. W. Baird, and was, on the seventh day of September, 1857, returned “not found,” whereupon the clerk of the court ordered that the notice be published in the Independent Press for four weeks, which was done. Upon this notice default was entered and judgment was rendered. Under this foreclosure proceeding the land was sold, and was purchased by Moore, the judgment creditor, to whom a sheriff's deed was executed January 3, 1859. Afterwards Moore mortgaged said premises to Peter W. Field, and, under foreclosure proceedings and sale thereon, a sheriff's deed therefor was executed to said Field on the eleventh day of June, 1860, who thereafter deeded said premises to the defendant, Jerre B. Foster.
On the third day of August, 1868, Foster and wife conveyed, with the usual covenants of seizin and warranty, 120 acres of said land to one E. F. Frush for the consideration of $600, and on the twenty-fifth day of November, 1871, E. F. Frush and wife, for the consideration of $700, conveyed, with the usual covenants of seizin and warranty, 80 acres of said land to the plaintiff. On the fifth day of February, 1878, J. W. Baird and wife, for the consideration of $50, without warranty, conveyed the land in controversy to one C. A. Anthony, who thereupon took possession of the land, which was unimproved open prairie, and commenced fencing and breaking the same. On the twenty-sixth day of July, 1880, Anthony and wife, for the expressed consideration of $600, conveyed to plaintiff the 80 acres of land now in controversy. The agreement of purchase between Royer and Anthony was as follows: “Whereas, Jacob Royer has this day purchased of C. A. Anthony and received of him a deed for the following real estate, to-wit * * * for the consideration of six hundred dollars; and whereas, said Royer desires time to pay said consideration; and whereas, said Royer has a claim against J. R. Foster (who conveyed said land to one E. F. Frush, by warranty deed, and by said Frush to him conveyed by warranty deed, the title to which has wholly failed) for the sum of four hundred dollars, with 6 per cent. interest from the third day of August, 1868, as damages for the breach of the covenants of warranty of the said...
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