Winn v. Murehead
| Decision Date | 21 October 1879 |
| Citation | 2 N.W. 949,52 Iowa 64 |
| Parties | WINN v. MUREHEAD |
| Court | Iowa Supreme Court |
Appeal from Tama District Court.
THE plaintiff leased certain real estate to the defendant for which the latter agreed to deliver the former a certain portion of the crops. After the lease, and before the rent accrued, the plaintiff conveyed the demised premises to one Yeiser by general warranty deed. This action is brought to recover the rent, and is resisted on the ground that it passed by the deed to Yeiser. There was also pleaded a counter-claim. There was a trial to the court, judgment for the defendant and both parties appeal.
AFFIRMED.
Struble & Kinne and Stivers & Bradshaw, for appellant.
Ebersole & Willett, for appellee.
I. The deed did not contain any reservation, and counsel for the appellant state the question to be determined as follows
This precise question does not seem to have been determined by this court. It was referred to in Johnson v Tantlinger, 31 Iowa 500. Many authorities are cited by Cole, J. The decided weight of authority cited being in the negative.
Moffett v. Armstrong, 40 Iowa 484, cannot be regarded as authority in the case at bar because the ruling was based on an instruction and not in relation to the admission of evidence. The decision was based on the thought that the land was purchased "subject to the right of the tenant to get off his crops," and not as to the manner or how such fact had been proved. Instead of objecting to the evidence in that case the defendant seems to have been willing to submit the question to the jury. That rent reserved by lease, and not accrued, passes by a conveyance of the land to the grantee, was held in Townsend & Knapp v. Isenberger, 45 Iowa 670; see, also, Abercrombie v. Redpath, 1 Iowa 111; Van Driel v. Rosierz, 26 Iowa 575.
If it passes at all it must pass as do houses, fences and other things that are appurtenant to, and constitute a part of, the real estate. Van Wagner v. Van Nostrand, 19 Iowa 422; Smith v. Price, 39 Ill. 28; Page v. Lashley, 15 Ind. 152.
As it would be incompetent to prove by parol evidence that a house or one acre of land had been reserved, the same must be true as to the rent portion of growing crops which has not accrued at the time of the conveyance. This rule is applicable to the present case, unless there exists some fact which makes it an exception. The plaintiff offered to prove the contract of sale to be as follows: "Mr. Yeiser to surrender to plaintiff four notes held by him against plaintiff for 2,000 and some accrued interest, and also to assume the payment of a certain mortgage on said land for $ 1,000, and some accrued interest, held by one Mrs. Kidner, and to pay plaintiff $ 300 in cash, or in lieu thereof to permit plaintiff to collect and receive the said rent from the defendant for said season of 1877 under said lease, and that after said agreement, and at and before the execution of said deed, said Yeiser did elect not to pay the plaintiff said $ 300, but in lieu thereof, and as part of the consideration of said sale of said land, it was mutually agreed by and between said plaintiff and said Yeiser that said defendant should account to and pay the plaintiff the rent to become...
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