Stanisics v. McMurtry
| Decision Date | 21 May 1902 |
| Citation | 90 N.W. 884,64 Neb. 761 |
| Parties | STANISICS v. MCMURTRY ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In an action by a grantee of a deed against his grantor to recover for a breach of covenant against incumbrances, parol evidence is inadmissible to show that taxes were, by contemporaneous oral agreement, excepted from the terms of the deed.1
Commissioners' opinion. Department No. 1. Error to district court, Lancaster county; Cornish, Judge.
Action by Theodore Stanisics against Amanda E. McMurtry and others. Judgment for defendants, and plaintiff brings error. Reversed.
Halleck F. Rose, M. M. Alexander, and Chas. O. Whedon, for plaintiff in error.
A. W. Field and Guy A. Andrews, for defendants in error.
The plaintiff brought this action in the district court of Lancaster county against the defendants to recover for a breach of a covenant against incumbrances contained in a deed executed by the defendants to the plaintiff. The trial resulted in a judgment for the defendants, to review which the plaintiff brings error to this court. The record shows that on July 16, 1896, the defendants conveyed to the plaintiff by warranty deed certain real estate situated in the city of Lincoln, Neb. The deed contained the following covenant: “And we do hereby covenant with said Theodore Stanisics, and his heirs and assigns, that we are lawfully seised of said premises; that they are free from incumbrances, except taxes for the year 1896, and paving assessments for subsequent years; that we have good right and lawful authority to sell the same; and we do hereby covenant to warrant and defend the title to the said premises against the lawful claims of all persons whomsoever.” The testimony is undisputed that at the date of the execution of the deed certain taxes against the lands were unpaid which were valid and subsisting liens upon the premises, and that subsequent to the execution of the deed, and prior to the commencement of this action, the plaintiff paid the said taxes for the years and in the amounts as shown by the following items:
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¦County taxes for the year 1895 ¦$169 45¦
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¦City taxes for the year 1895 ¦93 25 ¦
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¦Special assessment for street paving for the year 1890¦13 45 ¦
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¦Special assessment for street paving for the year 1888¦18 55 ¦
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¦City taxes for the year 1893 ¦295 00 ¦
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The plaintiff alleged in his petition that he had been paid on account the sum of $276.75, leaving a balance unpaid in the sum of $308.45, for which, with interest, he prayed judgment.
The defendants' answer alleged that the deed was made and delivered to the plaintiff with the understanding and agreement between the parties that, upon the payment by the defendants to the plaintiff of $300, the plaintiff would immediately pay off and discharge all of the taxes due upon said lands; that defendants paid to the plaintiff the said sum of $300 in full performance of the agreement, and received from the plaintiff a receipt in writing, as follows: The answer also alleged that the defendants executed the deed and paid said sum of money relying upon the agreement of the plaintiff to pay and discharge all of the taxes upon said property; that by reason of the premises the plaintiff is estopped to claim or demand any sum or sums from the defendants.
The reply denied the making of the agreement alleged in the answer; denied the payment of $300; and alleged affirmatively that the amount paid by the defendants on account of the taxes was intended to cover certain specific items of taxes, which were then represented by the defendants to include all of the unpaid taxes assessed upon said premises; that the receipt mentioned in the answer was issued subsequent to the payment of said sum of money for the purpose of giving written testimony of the sum so paid; that the plaintiff had not learned at the time of giving said receipt that the city taxes for the year 1893 were unpaid, and relied upon the statement of the defendants that the sum paid by them to plaintiff was sufficient to pay off and discharge all taxes assessed against said lands.
It also appears from the testimony that the plaintiff, immediately prior to the execution of the deed, had obtained from the city treasurer and the county treasurer a statement of the unpaid taxes due upon said premises. These statements disclosed that there was due and unpaid:
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¦County taxes for 1895 ¦$168 55¦
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¦City taxes for 1895 ¦89 65 ¦
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¦Paving taxes, 11th St. ¦18 55 ¦
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¦Paving assessments, M St.¦12 70 ¦...To continue reading
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Laclede Laundry Company v. Freudenstein
...that it is not permissible thus to contradict such parts of the contract as are expressed in the deed itself." In Stanisics v. McMurtry, 64 Neb. 761, 90 N.W. 884, action to recover for a breach of a covenant against incumbrances in a deed executed by defendant to the plaintiff, it was held ......
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Laclede Laundry Co. v. Freudenstein
...that it is not permissible thus to contradict such parts of the contract as are expressed in the deed itself." In Stanisics v. McMurtry, 64 Neb. 761, 90 N. W. 884, an action to recover for a breach of a covenant against incumbrances in a deed executed by defendant to the plaintiff, it was h......