83 Neb. 622 | Neb. | 1909
This action was instituted in the district court for Colfax county. The suit grew out of a contract by which one Homer B. Robinson sold and conveyed to the defendant all that part of a certain tract of land described as the west half and the southwest quarter of the northeast quarter of section 13, township 18, range i, in Colfax county, lying north of Maple creek, a stream which bisected the land owned by Robinson. The written contract is set out in the petition and is as follows: “Agreement. Aug. 19, 1905. H. B. Robinson agrees to sell, and O. D. Funk agrees to purchase, the following described lands
The case of Harrison v. Des Moines & Ft. D. R. Co., 91 Ia. 114, is cited and relied upon by plaintiff as supporting his right to recover. That suit was-in effect an action for a breach of a covenant of warranty in a deed of conveyance; there being public highways upon the land not
In this state, as in Iowa, practically the whole course of conveyances has been to treat public roads as an essential and necessary betterment, and not an incumbrance which depreciates the value of the land, and, hence, they have rarely been excepted from covenants in deeds of conveyance, and yet not considered as inimical to full covenants of seizin and warranty. We agree with the decision in the case above cited that no action could be maintained on covenants of seizin and warranty under the circumstances. This being true, there would seem to be no good reason why plaintiff might not recover in this action for the value of the land conveyed, but, owing to an error on the part of the surveyor, not paid for.
The judgment of the district court is therefore
Affirmed.