Seyfried v. Knoblauch

• Court: Colorado Supreme Court
• Writing for the Court: [44 Colo. 90]CAMPBELL, J. (after stating the facts as above).
• Citation: Seyfried v. Knoblauch, 44 Colo. 86, 96 P. 993 (Colo. 1908)
• Decision Date: 06 July 1908
• Parties: SEYFRIED v. KNOBLAUCH.

96 P. 993

44 Colo. 86

SEYFRIED v. KNOBLAUCH.

Supreme Court of Colorado

July 6, 1908

Appeal from District Court, Rio Grande County; Chas. C. Holbrook Judge.

Action by Rudolph Knoblauch against Mathaus Seyfried. Judgment for plaintiff. Defendant appeals. Affirmed.

The amended complaint alleges that defendant, Seyfried, sold and by deed or warranty conveyed to plaintiff, Knoblauch, for the consideration of $5,000, certain lands and two shares of water in an irrigating ditch. The deed contained covenants that the grantor was well seised of the premises conveyed 'as of good, sure, perfect, absolute, and indefeasible estate of inheritance in law in fee simple,' and had good right and lawful authority to sell and convey the same, and covenants of quiet enjoyment and general warranty. The parties agree that the two shares of water mean an undivided 2/9 interest in the ditch and the appropriations of water belonging thereto. The amended complaint says that defendant Seyfried, was not then the owner of the amount of water and interest in the ditch which he purported to convey, but only 13/72 interest therein, being 3/72 less than the interest described in the deed. There is a further allegation that after the deed was delivered to plaintiff, Moses Hallett claiming to own an interest in the ditch and its appropriations of water, brought an action in the appropriate court, in which plaintiff and defendant herein were made parties defendant, in which a decree was entered determining as between themselves, the rights of the respective owners of the ditch and water right, by which Knoblauch's interest, which he bought of Seyfried, was decreed to be 13/72 of the ditch and its appropriations. Plaintiff demanded judgment of defendant for the value of the 3/72 interest, which defendant purported to, but did not, convey or deliver to plaintiff. Defendant filed a motion to require plaintiff to separate the two alleged causes of action in the amended complaint; defendant's position being that the complaint contained two distinct causes of action--one for a breach of the covenant for seisin, and the other for a breach of the covenant of warranty. This motion was overruled by the trial court, whereupon defendant filed an answer, admitting the execution and delivery of the deed as set forth in the amended complaint, and alleging that he delivered to plaintiff the two shares of water which he conveyed, and plaintiff accepted the same and took possession thereof, and thereafter used and enjoyed the benefit thereof. The answer further alleges that defendant then owned two shares of water, which had been theretofore decreed to the irrigating ditch, and conveyed them to the plaintiff, who then and there received the same for his benefit. The answer also says that if any judgment or decree, such as is alleged in the complaint, was rendered, whereby it was adjudged that when defendant made such conveyance he was not the owner or did not have full right to convey two full shares of water, defendant had no notice of the action in which it was rendered. Upon the issues thus made there was a trial to the court without a jury, and a judgment for plaintiff in the sum of $281.25, from which defendant appealed.

Ira J. Bloomfield, for appellant.

Jesse C. Wiley, G. P. Nevitt, and Richardson & Hawkins, for appellee.

CAMPBELL, J. (after stating the facts as above).

Possibly the amended complaint is uncertain or ambiguous, and might have been subject to a special demurrer upon that ground. Mills' Ann. Code, § 50. Fairly construed, however, we think that only one cause of action is stated therein and relied on by plaintiff, and this is a breach of the covenant for seisin. The motion to separate the supposed causes of action was therefore properly overruled.

The action being one for breach of covenant for seisin, to sustain it there was no necessity for proving an eviction. If it was essential for plaintiff to prove that actual possession was not delivered to him of the 3/72 interest in this water right and the appropriations belonging thereto, this action must fail; for it is clear that immediately upon the delivery of the deed defendant withdrew from, and plaintiff entered upon, possession of the lands conveyed, and as soon as the irrigating season arrived used and enjoyed the benefit of the water right as conveyed. The covenant of seisin which is contained in this deed is, however, not satisfied merely by delivery of actual possession. This covenant is now regarded as one for title, and is broken upon delivery of the deed, if the covenantor did not then have title or lawful right to convey. Hayden v. Patterson, 39 Colo. 15, 88 P. 437; Frazer v. Supervisors, 74 Ill. 282; Tone v. Wilson, 81 Ill. 529; Clapp v. Herdman, 25 Ill.App. 509; Rawle on covenants for Title (5th Ed.) §§ 44, 56. The question here for decision, therefore, is whether, at the time of the delivery of the deed the grantor, defendant herein, had lawful title to the entire 2/9 interest in the water right which he purported to convey. Aside from the decree of the district court in the Hallett case, mentioned in the amended complaint, there was no evidence whatever that defendant did not have paramount title to the full two shares. If the decree is binding upon him, it conclusively establishes the fact that he then had only 13/72, instead of 16/72, interest in the ditch and water right.

It is the contention of defendant that under section 437, 1 Mills' Ann. St., he, as a warrantor in the deed, is not liable to the warrantee in this action on the covenant unless an unequivocal notice by the warrantee was given to him to come in and defend his title in the Hallett suit, and as such notice was not given, this action must fail. ...