Foshay v. Shafer

Apr 11, 1902

Reporters:: ,
Before:: Ladd

Ladd, C. J. —

1’

*304 2 *303 Though the land was conveyed to plaintiff in 1874, he was not disturbed in the possession or quiet enjoyment of it until 1898, when Moreland asserted his claim to the ownership of an undivided one-eighth, to which the court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍subsequently found him entitled. The defendants, with the other devisees, received compensation for this much to which, in making the conveyance in 1874, they conveyed no title whatever. The covenant, then, “we hold said premises by good and perfect title; that we have good right and lawful authority to sell and convey the same.” — was broken upon the delivery of the deed. But, as the covenantee had been given possession, the breach was only technical, and did not entitle him to recover substantial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍damages until some positive injury had been suffered. Nos ler v. Hunt, 18 Iowa, 212; Boon v. McHenry, 55 Iowa, 202; Hencke v. Johnson, 62 Iowa, 555; Norman v. Winch, 65 Iowa, 263. The cases relied upon hy appellant are not inconsistent with those cited. In Brandt v. Foster, 5 Iowa, 287, 294, the grantor had no title, and, to avoid eviction, the covenantee had purchased the paramount title. In Shorthill v. Ferguson, 44 Iowa, 249, Mitchell v. Kepler, 75 Iowa, 207, and Zeht v. Picken, 54 Iowa, 535, the covenan *304 tees never acquired possession. There are numerous decisions elsewhere to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the effect that the full consideration paid, with interest, may be recovered immediately upon the breach of the covenant, but this court is committed to the doctrine that no more than nominal damages may be had so long as the grantee remains in possession without actual injury. The cases adhering to each view will be found collected, in 8 Am. & Eng. Enc. Law, 186. But defendants also covenanted “to warrant and defend the said premises against the. lawful claims of all persons whomsoever,” and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍certainly there was no breach of this until ouster was effected by the decree awarding Moreland one-eighth of the land. Brandt v. Foster, supra. This covenant is distinct and independent of that relating to title, and there is no tenable ground for the claim that it is not equally binding on the grantors. Cheney v. Straube, 35 Neb. 521 (53 N. W. Rep. 479).

As the cause of action for substantial damages for the breach of either covenant did not accrue until 1899 recovery is not barred by the statute of limitations. McClure ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍v. Dee, 115 Iowa, 546.

The record does not disclose that the amount expended by plaintiff for attorney’s fees was included in the judgment of the court. That these may be recovered, however, in such a suit, appears from Meservey v. Snell, 94 Iowa, 222.— Aeeirmed.