Troxell v. Stevens

• Decision Date: 05 January 1899
• Parties: TROXELL v. STEVENS ET AL.
• Court: Nebraska Supreme Court

57 Neb. 329

77 N.W. 781

TROXELL

v.STEVENS ET AL.

Supreme Court of Nebraska.

Jan. 5, 1899.

Syllabus by the Court.

1. By virtue of section 51, c. 73, Comp. St., an after-acquired interest in real estate by a grantor inures to the benefit of the grantee when the deed purports to convey a greater interest or estate than the grantor owns at the time of the conveyance.

2. A grantee in a quitclaim deed takes only the grantor's existing interest, and the after-acquired title of his grantor in the property does not pass to him.

3. An after-acquired title does not inure to the benefit of the grantee, where the deed of conveyance under which he claims has been canceled and annulled by a decree of court.

4. An action cannot be maintained on a covenant of warranty of title, where it appears there has been no actual eviction or surrender of possession of the granted premises by reason of a paramount title.

5. A decree canceling a deed under which a grantee asserted title, the appointment of appraisers, under the act for the relief of occupying claimants (chapter 63, Comp. St.), to assess the value of the lasting improvements of the grantee, and the confirmation of the report of the appraisers by the court, alone do not amount to an eviction, where the owner of the paramount title has neither elected to accept the value of the land, nor to pay the occupant the value of his improvements, and the physical possession of the latter has not been disturbed.

6. Covenants of warranty in a deed for the conveyance of real estate, not broken when made, pass with the title, even though the subsequent conveyances are by quitclaim deeds.

7. Where the appraisement has been made under said act, the unsuccessful occupant cannot be ousted of possession of the premises until the successful owner has elected to pay, and has paid, the appraised value of the improvements, or elected to accept the value of the land, and the occupant has refused to pay the same.

8. The occupant may not have the land and improvements sold to pay the parties the value of their respective interests,--at least, not until a time has been fixed by the court within which the successful owner may elect whether he will accept the value of the land without the improvements, or to pay the value of the improvements, and he has refused to make such election.

Appeal from district court, Douglas county; Duffie, Judge.

Action by Benjamin F. Troxell against William J. Stevens and others. Judgment for defendants, and plaintiff appeals. Reversed.Warren Switzler, for appellant.

H. L. Day, J. Q. Burgner, Meikle & Gaines, Silas Cobb, Bartlett, Baldrige & De Bord, W. H. De France, E. W. & Wm. Simeral, Wright & Thomas, and Montgomery & Hall, for appellees.

NORVAL, J.

This is a suit by Benjamin F. Troxell to foreclose a mortgage on lot 1 of Troxell's subdivision of lot 3 of Geise's addition to the city of Omaha, executed by William Stevens, one of the defendants. Several judgment creditors of Stevens were made defendants, who appeared in the cause and set up their judgments. The Somerset Trust Company presented an answer and cross petition, praying the foreclosure of a tax-sale certificate. William J. Stevens filed an answer, pleading a counterclaim for damages for breach of the covenant of warranty in a deed to the mortgaged premises made by plaintiff to Richard S. Maulsby, said Stevens' immediate grantor. Jennie E. Stevens answered, asserting a lien upon the premises by reason of the assignment to her by said William J. Stevens of his rights and interests in a decree rendered in his favor, under the statute, in the case of Englebert against Troxell et al., in the district court of Douglas county, for lasting improvements placed on the lots covered by the Troxell mortgage. Upon the trial the court below found, inter alia, that William J. Stevens had sustained damages by reason of the breach of plaintiff's covenant of warranty in the sum of $1,614.67, from which amount was deducted $1,342.71 due on the mortgage, and a decree was rendered against Troxell in favor of William J. Stevens for $1,281.96. The court also awarded Jennie E. Stevens a lien on the premises for lasting improvements in the sum of $1,613. There are other provisions in the decree, which need not now be stated. Plaintiff has appealed. The sole controversy in this court is between Troxell and William J. and Jennie E. Stevens.

It is disclosed that one Francis Leon Englebert, a minor, was the former owner of the lot described in the mortgage; and while remaining such owner he executed a deed conveying the same and other real estate to one George E. Pritchett, who conveyed the property to Adolph Meyer. The latter sold and conveyed to John I. Reddick, who executed a deed to the premises to Troxell, the plaintiff and appellant herein. On November 10, 1887, by deed of general warranty he conveyed to one Richard S. Maulsby, who, with covenants of warranty, deeded the lot to Peter Ulrich, and the latter subsequently quitclaimed his interest in the property to his said grantor. Afterwards Maulsby executed a conveyance to the premises to William J. Stevens, and the latter subsequently gave the mortgage in suit. On August 17, 1893, William J. Stevens, by deed of quitclaim, conveyed said lot 1 to Jennie E. Stevens. On November 14, 1889, shortly after Francis Leon Englebert had reached his majority, he instituted in the district court of Douglas county a suit against said George E. Pritchett and the other persons named to whom the lot had been conveyed, down to and including William J. Stevens, to cancel and set aside his deed to Pritchett, and the other conveyances, because of his minority at the time his deed was executed. The district court rendered a decree canceling all the deeds, and ordered an appraisement of the real estate and lasting improvements, in accordance with the statute enacted for the benefit of occupying claimants. The appraisal was made in accordance with the decree, which the district court confirmed. Troxell prosecuted an appeal, and the decree was affirmed by this court. Englebert v. Troxell, 40 Neb. 195, 58 N. W. 852. Shortly after said decision, on May 7, 1894, said Francis Leon Englebert, by his attorney in fact, conveyed the mortgaged premises to one William A. Reddick, who on October 26th of the same year executed a deed for the same to Troxell. Subsequently the present suit was instituted in the court below.

It is argued on behalf of plaintiff that there has been no breach of his covenant of warranty, because he defended the title to the lot in the district court, as well as here on appeal, as he agreed to do by the covenant of his deed, and when defeated in the court of last resort he purchased the Englebert title; thereby preventing an ouster of William J. Stevens and his grantee, Jennie E. Stevens. Section 51, c. 73, of the Compiled Statutes is invoked to support this line of argument, which section declares: “When 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, shall accrue to the benefit of the grantee: provided, however, that such after acquired interest shall not inure to the benefit of the original grantor, or his heirs or assigns, if the deed conveying said real estate was either a quitclaim or special warranty,” etc. This piece of legislation makes an after-acquired interest in real estate by a grantor inure to the benefit of the grantee only where the deed purports to convey a greater interest or estate than the grantor at the time owned. If he merely conveys a present title or interest, then the title which he subsequently obtains to the property does not pass to the grantee. Manifestly the statute has no application where the transfer is by a deed of quitclaim. Pleasants v. Blodgett, 39 Neb. 741, 58 N. W. 423. If the provision quoted has any bearing on the present controversy, it is obvious that it did not have the effect to vest in either William J. Stevens or Jennie E. Stevens the subsequently obtained interest of Englebert in the property, since all the conveyances through which they claimed title did not purport to transfer the fee. The record shows that Jennie E. Stevens asserts title through a quitclaim deed from William J. Stevens, and also that one Peter Ulrich, a grantor in one of the conveyances in his claim of title, on November 8, 1888, made a quitclaim deed to the lot to Maulsby; so that, under the statute, the after-obtained Englebert title did not reach to Jennie E. Stevens, or inure to her benefit. This after-acquired title did not pass either to her or William J. Stevens for another reason. All the deeds constituting their claim of title, beginning from the one to Pritchett, and all the subsequent mesne conveyances down to and including the deed to William J. Stevens, were canceled and annulled by the decree in the case of Englebert v. Troxell, supra. The several deeds, therefore, were no longer in existence for the purpose of conveying or supporting title, and hence were wholly insufficient to transmit the after-acquired estate to the Stevenses. The deeds subsequent to the decree in the case above mentioned, from Englebert to Reddick, and from Reddick to Troxell, vested the paramount title in the latter, in whom, so far as this record shows, it still remains. The procuring of the Englebert title by this plaintiff was alone insufficient to defeat an action for a breach of his covenant of warranty. If plaintiff desires to invest the title to the lot in William J. Stevens, and make good his covenant, he can effectuate such purpose by an appropriate conveyance.

It is insisted that the covenant has not been broken, inasmuch as neither ...