Sac Cnty. Bank v. Hooper

• Decision Date: 15 May 1889
• Citation: 77 Iowa 435,42 N.W. 363
• Parties: SAC COUNTY BANK v. HOOPER.
• Court: Iowa Supreme Court

77 Iowa 435

42 N.W. 363

SAC COUNTY BANK

v.HOOPER.

Supreme Court of Iowa.

May 15, 1889.

Appeal from district court, Sac county; J. P. CONNER, Judge.

Action in chancery to quiet in plaintiff the title to land. A demurrer to the answer of defendant was overruled, and, plaintiff standing on its demurrer, a decree was entered for defendant. Plaintiff appeals.Breen & Duffie and Jas. H. Tait, for appellant.

Mason & Thompson, for appellee.

BECK, J.

1. The plaintiff alleges in its petition the following matters: That the plaintiff conveyed certain land by warranty deed to defendant's grantor; that one Early, holding a tax-title on the land, had conveyed it to plaintiff; that the county treasurer had failed to carry forward to the tax-list of the year for which the land was sold for taxes the prior delinquent taxes; that by reason of this omission and defect the tax-title was voidable, and could have been set aside upon repayment of the taxes paid by Early; that Hunter, who held the patent title, commenced an action against plaintiff, the grantee of Early, and defendant and his grantee, to quiet the title of the lands in him; that subsequently defendant purchased the outstanding title held by Hunter, and he dismissed his action; that afterwards the defendant brought an action on the warranties of plaintiff's deed to her grantor, and received the consideration paid for the land, with interest; and that, the judgment in that action having been affirmed in the supreme court, the plaintiff paid the judgment in full. Upon these facts plaintiff claims that it is entitled to a recon veyance of the land from defendant, and prays that it may be adjudged the owner thereof, and defendant may be barred and estopped from claiming title to the land. Defendant, answering, alleges that it has been adjudicated in an action in the district court of Sac county, wherein defendant was plaintiff, and the plaintiff in this case was defendant, that defendant's title to the land is paramount and superior to the title of plaintiff. Copies of the pleadings in that action are made exhibits to the answer. Plaintiff demurred to the answer, the demurrer was overruled, and thereupon a decree was entered for defendant.

2. This action was brought upon the warranties of the deed made by plaintiff to defendant's grantor, defendant having bought the title held by Hunter, and claiming that to be the valid outstanding title.

3. Counsel of the respective parties agree that the rule in this state is that, to authorize recovery upon the breaches of the contract of warranty in a deed, actual ouster of the warrantee need not occur, but that there will be constructive eviction when the superior title is asserted in hostility to the title under which the warrantee holds the land. Brandt v. Foster, 5 Iowa, 287; Funk v. Cresswell, Id. 62; Royer v. Foster, 62 Iowa, 321, 17 N. W. Rep. 516.

4. Delinquent taxes for previous years, it is provided by statute, shall be carried forward in succeeding tax-books, and any sale for delinquent taxes not so carried forward is invalid. Code, § 845. Barke v. Early, 72 Iowa, 273, 33 N. W. Rep. 677;Hooper v. Bank, 72 Iowa, 280, 33 N. W. Rep. 681;Dows v. Dale, 74 Iowa, 109, 37 N. W. Rep. 1;Gardner v. Early, 69 Iowa, 43, 28 N. W. Rep. 427. It is shown by the exhibits set out in defendant's answer that the...