Frederick v. Callahan

40 Iowa 311 | Iowa | 1875

Colis, J.

The single question presented by this record is, whether the covenant that the “ tenant is to build himself a dwelling at his own expense on such place as landlord points out; landlord agrees to buy the building at the expiration of the lease at such a price as three disinterested parties shall fix upoii it,” is such a covenant as runs with the land, under the circumstances averred in the petition, so as to bind the grantee of the land and assignee of the lease? We agree, (but not without some hesitation on the part of the writer hereof), in answering this question in the affirmative. Waiving an extended discussion of the general question, as well as a review of the authorities upon it which are confessedly inharmonious, and both confused and confusing, we state briefly some of the reasons leading us to our conclusion.

Under our statute a conveyance of real property, even in fee, need not contain either the words “heirs” or “assigns,” in order to pass a perfect title. (Rev., §§ 2208 and 2240, Code, §§ 1929 and 1970) — it is just as effectual for every purpose as if it contained the word “ assigns.” And “ the word ‘ land ’ and the phrases real estate ’ and ‘ real property ’ include lands, tenements and hereditaments, and all rights thereto, and interests therein, equitable 'as well as legal.” Rev., § 29, sub. 8; Code, § 45, sub. 87. And it is also enacted “that every conveyance of real estate passes all the interest of the grantor therein, unless a contrary interest can he reasonably inferred from the terms used.” Rev., § 2209; Code, § 1930. And under .our statute, also, all claims and rights are assignable; (Rev., § 1796-7-8; Code, § 2084-5-6;) and a covenant of seizin runs with the land. Schofield v. The Iowa Homestead Oo., 32 Iowa, 317; Ba/rlcer v. Kuhn, 38 Iowa, 392. Erom these and other considerations, the lease in controversy is to be construed the same in all respects as if the word's “ or assigns ’ were expressly written therein. The performance of the covenant, on the part of the plaintiff, to build the house upon the land, became beneficial to the rever-sioner, the defendant, and to no other person. The house was built at the time of the assignment of the lease and the conveyance of the land to the defendant, and the title and right to it passed to the defendant at the expiration of the lease. The covenants respecting the house have direct and especial reference to the land. The defendant recognized his liability by agreeing upon the disinterested persons to fix the value of the house. There is much of wholesome equity in requiring tbe defendant to pay for that, the benefit and value of which lie alone enjoys.

REVERSED.