51 Iowa 321 | Iowa | 1879
— The petition alleges the execution of the deed, containing covenants of seizin and against incumbrances, which is made an exhibit, and that when it was executed defendant was not lawfully seized of all the lands conveyed; that they were not free from incumbrances, and that defendant did not have good right and lawful authority to sell the same. It is then averred that the Milwaukee & St. Paul Eailroad Company “owned and held, and were in actual exercise of the rights of occupancy of, and were entitled to the right of way thereto, some six acres, being a strip one hundred feet wide,” etc., and “plaintiff never received and was
The testimony shows that the railroad company named in the petition actually occupied a right of way as alleged, and that such occupation had been for several years. No testimony was offered by either party as to the right of such occupancy. ' Plaintiff did not introduce evidence to show that it was based upon right, nor did defendant offer to show that it was without right. The court gave the following instructions :
“4. The deed introduced in evidence by the plaintiff contains’full and complete covenants against incumbrance on the land, and this covenant is broken if, at the time the deed was made and delivered, the railroad company had a valid right of way for its track over and across the farm or any part of it; but, under the issue, the burden is on the plaintiff to show by the evidence that such a right of way was then owned by said company.
“5. It would not be sufficient to show that the company used and exercised ownership over such a privilege, but it must be shown that it had a valid right to do so, and when the deed was made and delivered.”
These instructions are complained of as erroneous.
It will be readily seen that in these cases the defendant sets up as a defense to the action an affirmative fact, namely, title 'in himself, seizin of the land, when the deed was executed. But no such affirmative allegation of fact is or can be made when a defendant, as in this ease, denies the existence of an incumbrance alleged by plaintiff. Plaintiff alleges the existence of an incumbrance; defendant denies the allegation. Here is no affirmative allegation by defendant. In the case of an action upon the covenant of seizin the plaintiff alleges that defendant did not hold the title; the defendant denies that he did not hold the title, thus affirmatively alleging that he was seized of the land. It will be thus seen that this case is clearly distinguishable from Schofield v. Iowa Homestead Co. and the other cases above mentioned. It follows that the fourth instruction given by the court is correct in holding the burden of proof to be on plaintiff.
These views dispose of the 'case. The jury failed to find
Affirmed.