Yancey v. Tatlock

• Decision Date: 22 January 1895
• Citation: 61 N.W. 997,93 Iowa 386
• Parties: YANCEY v. TATLOCK ET AL.
• Court: Iowa Supreme Court

93 Iowa 386

61 N.W. 997

YANCEY

v.TATLOCK ET AL.

Supreme Court of Iowa.

Jan. 22, 1895.

Appeal from district court, Louisa county; D. Ryan, Judge.

Action for damages for a breach of a covenant against incumbrances. Judgment for plaintiff. Defendants appeal. Affirmed.D. N. Sprague and L. A. Reiley, for appellants.

Gray & Tucker and C. A. Carpenter, for appellee

KINNE, J.

1. Plaintiff avers: That on November 3, 1883, he purchased certain land of defendants and paid for the same. That they executed and delivered to him their warranty deed therefor, which contained the following provision: “And we warrant the title hereto against all persons whomsoever.” That at the time he purchased the land it was mortgaged, which fact was known to defendants, but not known to plaintiff, and was concealed from plaintiff. That he has been compelled to pay said mortgage in the sum of $560, and has been damaged in the sum of $400 for which he prays judgment. Defendants admit the sale of the land, the execution and delivery of the deed, and the existence of the incumbrance, and deny all fraud, deny that the fact of the incumbrance was concealed from plaintiff, and aver that he had full knowledge of the same. They also say that the cause of action matured more than five years prior to the commencement of this suit, and that the action is barred. Other facts are pleaded, which are not material to the decision of the questions presented. The court rendered judgment for plaintiff for $592.36 and costs, from which this appeal is taken.

2. Appellants claim that this is an action for fraud and deceit, and that it is barred. We do not think so. It is a plain action for damages for the breach of warranty against incumbrance. While it is true that the deed was executed and delivered in 1883, and there was at that time a technical breach of the covenant by reason of the existence of the incumbrance, still only nominal damages could be recovered until plaintiff had paid the incumbrance. Funk v. Creswell, 5 Iowa, 62; Brandt v. Foster, Id. 287; Royer v. Foster, 62 Iowa, 321, 17 N. W. 516;Bank v. Hooper, 77 Iowa, 437, 42 N. W. 363. It is, then, a case coming within the fifth subdivision of section 2529 of the Code, and may be brought within 10 years after the cause of action accrued. It was brought within 10 years from the time the deed was executed and delivered, and hence was not barred.

3. The allegation in the petition touching plaintiff's want of knowledge of the existence of the incumbrance at the time he purchased, and its concealment from him, was wholly immaterial, and hence need not be proven. Billingham v. Bryan, 10 Iowa, 317;Specht v. Spangenberg, 70 Iowa, 488, 30 N. W. 875. It was not material that plaintiff had notice of the incumbrance when he purchased. A grantee in a deed containing covenants against incumbrance may recover for a breach thereof, even though he had knowledge of the incumbrance prior to the time he took his deed. Flynn v. Mining Co., 72 Iowa, 738, 32 N. W. 471;McGowen v....