35 Iowa 16 | Iowa | 1872
On the assessment of damages the plaintiff was called as a witness, and testified that he purchased the land mentioned in the bond with eighty acres of other land and received a deed for both tracts, which deed was
The bond is in these words :
“ Know all men by these presents, that we John Delaney as principal, John Hays and John Long as sureties, are held and firmly bound unto James Beard, in the penal sum of $400, for the payment of which we hereby bind ourselves and assigns.
“ The^conditions of the above bond to be null and void in case the principal, John Delaney, immediately proceed and perfect the title to James Beard, of the following described land, to wit: Nineteen acres of land, off of west £ of s'onth-east J of nórth-east J of section (9) in township (72) north, of range (20) west, there being at time of making this bond no title for said land out of Jesse Williams, who entered the land aforesaid. Now in case said Delaney proceeds immediately, and within a reasonable time perfects the title to the land aforesaid, then this bond to be void, else to remain in full force and effect. • Witness our hands this 23d day of March, A. D. 1870.
“ John Delaney, .
“ J. A. Long,
“John Hays.
“Witness, E. B. Woodward.”
The action was commenced on the 7th. day of October, 1870, and the petition alleges, as the breach of the bond, “ that neither of the defendants have taken any steps or
The court below viewed the case as being substantially an action upon the covenant of warranty in a deed, and held that the conveyance invested the grantee with the possession, and that, as there was no eviction, only nominal damages were recoverable.
In this view the court erred. The action was on the bond for title. The breach alleged is the failure of the principal obligor to procure the title according to the terms of the bond. The consideration paid for the land was $400. Unless there is some inflexible rule of law to the contrary, it would seem clear that, if the plaintiff paid the defendant $400 in consideration of his agreement to procure the plaintiff a good title for the land described in the bond, which the defendant has failed to perform, the measure of damages should be the consideration paid and interest.
It is urged by appellee that the defendant having executed and delivered to plaintiff a warranty deed for.the land contemporaneous with the execution of the bond, the bond created no additional obligation on the part of the grantor. It is to be observed that there is nothing in the record showing that the deed executed and delivered by Delaney to the plaintiff contained a covenant of warranty or any other covenant. The only evidence of such deed is the oral testimony of the plaintiff; he says: “ I paid John Delaney $400 for the tract of land described in the petition.” “ I purchased this land with eighty acres of other land, and received a deed for all the land purchased,” etc.
The covenant of warranty in a deed for lands is intended to assure to the purchaser the possession of the premises, and it is only broken by eviction, which may be actual or
The obligor, Delaney, did not pretend to have any title whatever. He made a deed for the land to plaintiff it is true, but it was well known to both parties that the title was in Williams. Delaney was to procure the title to be made to the plaintiff, and the latter was to retain the purchase money until he was invested with the title to the land. Delaney, desiring to use the money, executed the bond with his co-obligors in consideration of the $400, the price of the land being paid him by plaintiff in advance of his obtaining the title from Williams. The plaintiff never took possession or claimed title to the premises. He could not enter upon the land without committing a trespass. He knew the title was in another, against whom or upon whose land he had no claim, legal or equitable. He had no color or claim of title whatever to the land. The bond then must be treated as the parties evidently intended it, as a bond for title.
Had there been no conveyance of the premises by Delaney to the plaintiff, it would be beyond dispute that the plaintiff, having paid the price, and Delaney failing to comply with the conditions of the bond, and procure the title for the plaintiff as stipulated, the plaintiff would be entitled to recover the money paid and interest, this being the measure of his injury. Foley v. McKeegan, 4 Iowa, 1; Stewart v. Noble, 1 G. Greene, 26. That there was a deed made did not change the rights of the parties under the facts shown.
It is further urged by appellee that the $400 mentioned in the bond is to be treated as a “ penalty,” and not as liquidated damages, and that, so long as the plaintiff holds Delaney’s deed for the land, the actual damages for a breach of' the bond is only nominal.
It is urged that the plaintiff ought not to recover more than nominal damages without reconvening the land. The plaintiff’s right of action does' not depend upon this in any degree whatever. It arises on the alleged breach of the bond. That plaintiff has not offered to reconvey cannot affect the measure of damages for such breach. Delaney will be entitled to a reconveyance only after he shall have discharged the judgment for damages. But that he may be then entitled to demand a reconveyance, or a cancellation of his deed to plaintiff, cannot operate as a bar to the recovery by plantiff of his full actual damages in this action. The sum named in the bond was paid by the plaintiff in consideration of the agreement by defendant to procure for the former the title to the land, which he has not done. The injury to the plaintiff can be compensated only by repayment of his money, with interest, which is the measure of his damages.
Reversed.