Crum v. Loud, 23 Iowa 219

Crum v. Loud

23 Iowa 219 | Iowa | 1867

Wright, I.

l. convey-covenants: restraining ■words. Appellant relies upon two general points: First. That the words, “ claiming through or under us,” limit and restrain all the preceding covenants, special as well as general; and that thus con-x , ° , - _ strued, plaintiii was not bound to protect the property against incumbrances suffered by others than himself or some one claiming under him. Second. That the testimony shows this to have been the intention, and that the deed should be reformed so as to effectuate such intention.

' A' majority of the court concur in sustaining the second proposition, and do not, therefore, stop to discuss the first, insisting, however, that the language used is no slight circumstance indicative of the real contract and *227intention. I do not 'agree in thus construing the testimony. I am also of the opinion that the -law is against appellant on his first point, and that the judgment below should, therefore, be affirmed. As the case does not, in the opinion of the majority, turn on this, I only state that, in my view, here are several special and distinct covenants; that the last general one is alone limited or restrained by the words in writing, and that it is only when the intention to restrain a preceding by a subsequent limited covenant expressly appears, or when they are clearly inconsistent, that courts are justified in thus limiting the grantor’s liability.

Having said thus much (and in view of the points upon which the case turns, to elaborate the question would be unnecessary), I proceed to state briefly the grounds' which, in the ■ opinion of the majority, show that the equities of the case are with the appellant.

Plaintiff loaned to one Bowles, seventy dollars, and took a deed for these premises as security. Bowles sold to defendants, and they borrowed of plaintiff an additional sum to complete their payment, he executing, a bond, which recited" that, “ I hereby agree to sell and convey of warranty to, etc., and their assigns, all the title that James C. Bowles and his wife have this day conveyed to me by warranty.” There is testimony tending to show that when the money was paid, plaintiff proposed to make a quitclaim deed, claiming that such was his contract; that there was some controversy, and that finally defendants agreed to accept such a deed; that he endeavored toobtain a printed form appropriate to the purpose, and being unable to do so, undertook to secure the same end, by adding the words found in the deed, at the close of the covenants in a deed of general warranty; and that the parties mutually understood and intended, in fact, to give and take a conveyance by quitclaim. And that this *228was the real intention of the parties, it is claimed is shown, first, by the language of the deed itself, in connection with the fact that these words were written; second, by the tenor of the bond; third, by the title and circumstances under which plaintiff held ; fourth, bvy the improbability that plaintiff would thus covenant, as to a title which he had not examined, and when the amount loaned bore so small a proportion to the full value of the land; fifth, by.the positive testimony of plaintiff and another witness, as to the real intention and understanding; sixth, the flagrant and manifest injustice of holding plaintiff for incumbrances under his covenants, when defendants bought of Bowles and knew that plaintiff, as to them and their vendor, held the title as a mortgagee and trustee, having no claim or interest in the property beyond the amount thus loaned and secured. - And conceding the rule that it was plaintiff’s duty to make out his case by proof clear and satisfactory, the majority think that this has been done, and that he is entitled to the reformation of the contract asked. The rules applicable are not controverted. Each case stands very much upon its own circumstances, and I am instructed to thus state the result reached, which I do without entering at length into a discussion of the testimony or the law applicable.

g _miSap. FelaSect °f of words. I only add that the testimony, giving it the most favorable view for the plaintiff, leads me to an opposite result. The written testimony, so far from favoring, is, as I construe it, at war with plaintiff’s theory. And' as to the parol proof, whatever may have been plaintiff’s intention, the defendants did not so understand the contract, but have a right to stand upon the tenor of .their deed. Then again, at most, plaintiff merely misapprehended the legal effect of the words used, for he used the very words he intended to, and he cannot, therefore, escape liability. This rule *229I regard well settled. As the majority conclude, however, that the equities of the case are with appellant, let the judgment below be

Reversed..