39 Iowa 452 | Iowa | 1874
James Goodwin, one of the commissioners to locate the county seat, testified: “ We met at Amsterdam; had two surveyors with us, Mr. Frost and James Crow. When we were at the center of the county we stuck a stake, about 6 miles from present location, and agreed if we could not find a better spot we would locate there. And afterwards came to this present location and stuck a stake, and agreed if we could not get a title to -the land, the location of the county seat should be at the other place.”
At an adjourned session of the Board of Supervisors on the 25th of December, 1865, the appointment of James Crow was rescinded and J. M. Elder, the clerk of the board, was directed to procure title to the land designated for the county seat. On the 31st of December, 1865, Jacob Ward wrote Burdick & Son as follows: “ Yours concerning title to county seat was received by me yesterday, while in settlement with the county, and read to.the board. We have erected two buildings on the same site, and are now doing business in them, and if title is given satisfactorily, will be a permanent county seat. * * * * In regard to county seat here, you will hereafter do the business through our worthy clerk of the Board, J. M. Elder, or send.deed to me. The county will pay expense of deed.”
J. M. Elder testifies as follows: “ I made no arrangement with N. Burdick & Son about county seat. The arrangement had been made before with them; I wrote to them about the title two or three times. We did not care to make improvements until title was obtained. I do not recollect of writing them that the location depended on donation of.land, but I
It is claimed that the power of attorney was obtained by fraud and misrepresentation. This finds no satisfactory support in the evidence. It is not proved that at the time of writing the letter of November 28th, Burdick & Son had any information respecting the matter in question, further than that contained in the letter of Crow. It is abundantly proved that this letter of Crow was forwarded to defendant.
The failure to forward the letter of "Ward can in no way affect the good faith of Burdick & Son respecting the procuring of the power of attorney, for this letter was not written until the 31st of December, whereas the power of attorney was executed on the 5th of the same month. As the power of attorney was executed on the 5th of December, in response to a letter of the 28th of November, there can scarcely be a doubt that the power of attorney was in the hands of T. W. Burdick long before the receipt of Ward’s letter.
Various other objections are urged, as that T. W. Burdick was negligent in the exercise of the authority conferred by the power of attorney; that-the power conferred no authority to deed to plaintiff; and that Burdick & Son did nothing to secure the location of the county seat. These objections need not be separately considered. It is quite apparent that the location made by the commissioners was only a conditional one, and that its permanency was to depend upon the procuring of a satisfactory title to the land. It further appears that Burdick & Son wrerein communication with the county officials for a considerable period, for the first letter of Crow was dated December 20th, 1865, and the deed was not executed until the 27th of February, 1866. The evidence shows that defendant was paid in money for the 40 acres deeded to plaintiff-$100, and in services and disbursements to the amount of $20. This was the full value of the land aside from its enhancement through the location of the county seat. ■ Defendant testifies: “ I received intimation of the fact that the commissioners had' fixed the location of the county seat prior to November 28th, 1865, as early, perhaps, as the latter part of 1867, but more
This letter was written just one month and five day's before defendant conveyed the land in question to his daughter, Julia Gray. It is not pretended that in the meantime he gained any additional information respecting the conduct of his agent. In fact, he knew everything that was material before. He knew the county seat had been conditionally located upon his land, prior to Nov. 28th, 1865, and that all that was required to render it permanent was that tlie'title to 40 acres of land should be made to the county. He knew T. W. Burdick had conveyed 40 acres of land to the county; he knew he had conveyed 40 acres of land to Nelson Burdick, and still he says: “ I am not aware of having intimated any dissatisfaction with you in this business.. As far as I know, you fulfilled the trust reposed in you, legally and faithfully.”
The only reasonable construction which can be placed upon this language is, that defendant, in consideration of the $100 paid and the other disbursements made; and their negotiations respecting the perfecting of title, whereby the location of the county seat was made permanent, was satisfied that his agents should have title to 40 acres of the land, and that it made no difference to him whether it was conveyed to Burdick & Son, or to Nelson Burdick. Aud, indeed, defendant had good reason to be satisfied. For, by the mere conyeyance of 80 acres
We are satisfied that defendant, with full knowledge of all the material facts, by his subsequent conduct and declaration, ratified the conveyance to plaintiff, and that he is bound thereby.
This case falls under precisely the same principle. Here the vendor, after the conveyance was executed, does an act which at the same time displaces or defeats the prior conveyance, and puts it out of his power to vest the title in the prior purchaser.
This is not properly an action upon the covenant of warranty. A vendor would not be liable upon the covenant of warranty, if the condition which ultimately defeats the title of his grantee, comes into existence after the conveyance is
We are clear, therefore, that in this case the plaintiff is entitled to recover the highest value of the land at any time between his purchase and the commencement of his suit..
As this value was in no way determined in the court below, final judgment cannot be entered here, and the cause must be remanded. ' .
Reversed.