Schiltz v. Ferguson
| Decision Date | 23 June 1930 |
| Docket Number | No. 40219.,40219. |
| Citation | 210 Iowa 677,231 N.W. 358 |
| Parties | SCHILTZ v. FERGUSON ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Frank S. Shankland, Judge.
Action in equity to quiet title to certain property in the City of Des Moines. From a decree for the defendants, the plaintiff appeals.
Reversed.Kelly, Shuttleworth & McManus, of Des Moines, for appellant.
Howe & Howe, of Des Moines, for appellees.
Plaintiff is the holder of a warranty deed to lots 21, 22, 23, and 24 in Grassmere, an official plat now and formerly a part of the city of Des Moines, Iowa. This deed contains the usual warranty and covenants in which the defendant, J. C. Ferguson and wife, are grantors, and the plaintiff herein is grantee. The question in dispute is whether or not this deed covers a certain frame building which stood upon the property at the time of this conveyance. The record fully shows that, at the time of this conveyance, Ferguson was not the owner of this building, and also further shows that, subsequent to the date and delivery of the conveyance, Ferguson became the owner thereof.
Section 10043, Code 1927, reads as follows: “Where a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor, to the extent of that which the deed purports to convey, inures to the benefit of the grantee.”
[1][2] The warranty deed above referred to had no exceptions or reservations whatever, and therefore carried title to Schiltz, not only of the land itself, but of all the buildings thereon, and when Ferguson acquired title to the building under the above-quoted section of the Code, by reason of the fact that he did not have such title to convey at the time he made the deed, his subsequent acquiring of such title passed it on to Schiltz, and thereby Schiltz became the owner, not only of the land, but of the building as well. This must be decisive of the case, unless by reason of certain other matters, to which reference will be later made, the operation of the statute is avoided.
It is undisputed that on November 29, 1927, Schiltz signed an offer in writing to buy the above-described property, which offer was promptly accepted by Ferguson. The property was described therein under the identical description above set out in the deed, and Ferguson was to furnish an abstract showing a good and merchantable title, free and clear of all taxes, assessments, liens, incumbrances, etc. It is admitted by all parties that there was a frame building on a concrete foundation on the above-described property at the time of the making of this contract. The evidence also shows that this building was placed on said lots by the defendant Jenkins under a lease with one Donahey, grantor of Ferguson, under date May 28, 1927. Under the terms and provisions of this lease a written agreement was made canceling the same as of the date of October 1, 1927, and permission was given by Donahey to Jenkins “to leave building and equipment stand on my (Donahey's) ground, at no rent to me, while you (Jenkins) are endeavoring to sell or trade the same, as a going business.” Right was reserved to Donahey to cancel this agreement at any time by giving 30 days' written notice to remove the building and equipment from the premises. Neither this lease nor the cancellation thereof was made of record in Polk county, Iowa. This building was used for the sale of soft drinks, but was not being actually used for that purpose at the time in controversy herein. The building was locked with a padlock and the keys were in the possession of Jenkins, although at times in the possession of Ferguson.
This action was brought originally against Ferguson and Jenkins to quiet title to the building. Jenkins and Ferguson filed separate answers, the substance of each being that the building was erected and owned by Jenkins; that Schiltz was advised of and knew that Jenkins was the owner of this building before he entered into the written contract for the purchase of the property on November 29, 1927. This gives rise to the crucial question in the case. Schiltz denies that he had any knowledge or information whatever of Jenkins' ownership or claim of ownership to this building before he signed the contract of purchase, but admits that after he signed the contract, and before he received the deed, he was fully advised of Jenkins' claim. With this knowledge on the part of both the vendor and the vendee, the vendor Ferguson made a deed to Schiltz containing full covenants of warranty.
At this point we are cited to the parol evidence rule and the following cases called to our attention: Van Wagner v. Van Nostrand, 19 Iowa, 422;Barlow v. McKinley, 24 Iowa, 69;McGowen v. Myers, 60 Iowa, 256, 14 N. W. 788;Flynn v. White Breast Coal & Mining Co., 72 Iowa, 738, 32 N. W. 471;Harrison v. Des Moines & Ft. Dodge Ry. Co., 91 Iowa, 114, 58 N. W. 1081;Newburn v. Lucas, 126 Iowa, 85, 101 N. W. 730;Stuhr v. Butterfield, 151 Iowa, 736, 130 N. W. 897, 36 L. R. A. (N. S.) 321; and Horn v. Phillips, 167 Iowa, 169, 149 N. W. 80. It is to be noted in passing that each and all of these cases are law actions for breach of covenants of warranty, but, as we view the matter, this question is not really involved in the case we have before us, and we make no pronouncement on the parol evidence rule in relation hereto.
It is the claim of the defendant that there was a severance by mutual agreement between Donahey and Jenkins, the owner of the building, which was known to Ferguson and acquiesced in by him, and that Schiltz was notified of this severance before he purchased the property.
[3] The law seems quite well settled on the doctrine of severance urged by the defendant. If A. owns a tract of land, he may agree with B. that he (B) may place fixtures or improvements thereon which shall retain a personal character and be removable as personal property. This doctrine is recognized in Iowa in the following cases: Wenig v. City of Cedar Rapids, 187 Iowa, 40, 173 N. W. 927;Fischer v. Johnson, Lane & Co. et al., 106 Iowa, 181, 76 N. W. 658;Melhop, Son & Co. v. Meinhart et al., 70 Iowa, 685, 28 N. W. 545;Walton v. Wray, 54 Iowa, 531, 6 N. W. 742;District Township of Corwin v. Moorehead, 43 Iowa, 466, and cases therein cited.
[4] Such contract is held to be a valid and enforceable contract, and under this doctrine it would be equally true that, where a man owns a house and lot, he may contract by specific agreement with another party that the house shall belong to the other party and be constructed as personalty. This is what is generally treated in the law as “a constructive severance,” and is recognized in: Robertson v. Phillips, 3 G. Greene, 220;Denham v. Sankey, 38 Iowa, 269;Hull v. Alexander, 26 Iowa, 569;Wenig v. City of Cedar Rapids, 187 Iowa, 40, 173 N. W. 927.
[5] When such an agreement has been made between two parties and not made of record, it is of no validity against a subsequent purchaser or a person standing in the position of a purchaser without notice of such severance. Moore v. Moran, 64 Neb. 84, 89 N. W. 629;Russell v. Meyer, 7 N. D. 335, 75 N. W. 262, 47 L. R. A. 637;Cochrane v. McDermott, 6 Ala. App. 121, 60 So. 421;Smith v. Waggoner, 50 Wis. 155, 6 N. W. 568; Fenlason v. Rackliff, 50 Me. 362; Lacustrine Fertilizer Co. v. Lake Guano, 82 N. Y. 476.
[6] On the other hand, it is held that if the purchaser has notice of an agreement of severance, it is binding upon him. Mitchell v. Freedley, 10 Pa. 198;Williamson v. Clay Center (C. C. A.) 237 F. 329;Muehling v. Magee, 168 Mo. App. 675, 153 S. W. 787;...
To continue reading
Request your trial