Upton v. Smith

• Decision Date: 08 February 1918
• Docket Number: 31907
• Citation: 166 N.W. 268,183 Iowa 588
• Parties: WILLIAM H. UPTON, Appellant, v. LUCY B. SMITH, Appellee
• Court: Iowa Supreme Court

166 N.W. 268

183 Iowa 588

WILLIAM H. UPTON, Appellant, v. LUCY B. SMITH, Appellee

No. 31907

Supreme Court of Iowa, Des Moines

February 8, 1918

REHEARING DENIED MAY 10, 1918.

Appeal from Henry District Court.--JAMES D. SMYTH and OSCAR HALE Judges.

SUIT for specific performance of a contract of purchase resulted in the dismissal of the petition. The plaintiff appeals.

Affirmed.

A. W Kinkead, for appellant.

No appearance for appellee.

LADD, J. PRESTON, C. J., EVANS and GAYNOR, JJ., concur.

OPINION

LADD, J.

The parties hereto entered into a written agreement, September 9, 1914, by the terms of which defendant undertook to purchase "Blocks 3 and 4 of College 2d Addition to the city of Mt. Pleasant, together with the alley running east and west through said blocks, and the west half of the 60-foot street running north and south between the south half of said Block 3 and the south half of said Block 2 of said addition, for the price and sum of $ 2,600. Said Upton is to furnish an abstract of title to said premises, showing good title in him and freedom from incumbrance, and on the 15th day of December, 1915, is to make and deliver to said Smith a good and sufficient warranty deed, when possession is to be given and said consideration paid. "

The plaintiff tendered a deed such as required by the contract, and with it an abstract of title; but defendant refused to perform, and, in a petition alleging the above facts and continuing the tender in the petition, the date of performance is sought to be corrected, and a decree of specific performance prayed.

The defendant interposed a general demurrer, and it was sustained. Thereupon, an amendment to the petition, with addenda added to the abstract, was filed, and motion of defendant to strike was overruled. A demurrer was sustained on the grounds of want of equity, that the abstract of title furnished was not such as stipulated, and that there had been unreasonable delay in the matter of performance by plaintiff; and, as plaintiff elected to stand on the ruling, the petition was dismissed. Only the ruling on the sufficiency of the abstract of title need be considered. By good title is meant nothing less than an estate in fee, a marketable title, or one which can again be sold to a reasonable purchaser. Fagan v. Hook, 134 Iowa 381.

The term "abstract of title" has reference to the record title, and not to extrinsic evidence thereof and links lacking therein; and adverse possession may not be made or be supplied and made matter of record by the making and recording of affidavits. Fagan v. Hook, supra.

William C. Stevenson became owner of the SW 1/4 of Section 4 in Township 71 North, of Range 6, in Henry County, in 1841. Upon his death, title passed to his widow and son, who conveyed by warranty deed a tract of 44 acres to Thomas E. Corkhill and Austin Coleman, on November 6, 1854, under the following description:

"Com. 20 Chains S. of NE cor. SW 1/4 Section 4-71-6, W. 40 chains, S. 11 chains, E. 40 chains, N. 11 chains to p. B., 44 a."

Coleman conveyed all his interest therein to Corkhill, and the latter, on March 1, 1856, deeded to William Kneen land described as "corn. Com. at NE cor. of 44 acres conveyed by James Putnam and wife and Diana Smith to T. E. Corkhill and Austin Coleman in Nov., 1854, S. 151 1/2 feet, W. 69.7 rods, N. 151 1/2 feet, E. 69.7 rods to p. b., 4 acres." A few days later, he conveyed to Hugh Gibson a tract of same dimensions, immediately south of the above, and Gibson transferred the same to Kneen. In the month following, Thomas E. Corkhill executed a deed to Kneen, with description following:

"About 1 1/4 acres lying next W. of and adjoining a tract of 8 acres sold by T. E....