66 Neb. 404 | Neb. | 1902
This action was one to recover damages for a breach of covenants of general warranty contained in two certain deeds, one of which was given by Robert N. Hurlbut and wife to Abel M. Merrill, and one given by said Merrill and wife to the defendant in error Henry B. Suing. It was alleged in the petition that on the 4th day of June,’ 1886, defendants Robert N. Hurlbut and his wife, Mary, were the owners of lots 8 and 9 in block 27, and lot 15 in block 81 in the village of Hartington, Cedar county, Nebraska; that at said time they duly executed, acknowledged and delivered a mortgage thereon to E. S. Ormsby, trustee, and P. 0. Refsell, for the sum of $600; that on the 11th day of March, 1889, the defendants Hurlbut and wife, in consideration of the sum of $650, duly executed, acknowledged and delivered to the defendant Abel M. Merrill a warranty deed, and thereby conveyed to him lots 8 and 9 of block 27. This conveyance was a short form of warranty deed, and contained the usual and ordinary covenants of warranty. It was further alleged that on the said 11th day of March, 1889, the defendant Merrill, and his wife, Mary J. Merrill-, entered into the possession of the said premises, and on the 15th day of March, 1889, in consideration of the sum of $6-50, duly executed, acknowledged and delivered to the plaintiff a warranty deed, and thereby conveyed to him said lots 8 and 9 of block 27; that said deed contained the usual covenants of warranty, as follows: “We do hereby covenant with the said Henry B. Suing that we hold said premises by good and perfect title; that we have good right and lawful authority to sell and convey the same; that they are-free and clear of all liens and incumbrances whatsoever, except one mortgage of $264 to Levi H. Monroe. And we covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever.” It was further alleged that at the date of the execution and delivery of the said deeds the defendants did not have a good and sufficient title to said premises, but on the contrary,
1. Plaintiff contends that the court erred in overruling his demurrer to the defendant’s petition and his objection to the introduction of any evidence in support thereof, for the reason that said petition did not state facts sufficient to show that the defendant had ever been evicted, compelled to surrender his title to one paramount thereto, or had ever been disturbed in any manner whatever in his peaceable possession and quiet enjoyment of the property conveyed to him by the deeds mentioned therein; and that said petition did not state facts sufficient to constitute a cause of action against him. We are inclined to think that plaintiff’s demurrer should have been sustained, for the reasons which will be hereafter given; but having answered over after his demurrer was overruled he can not now assign such ruling as error. A different rule prevails in relation to his objection to the introduction of any evidence, at the commencement of the trial. It is proper practice for one where he thinks the petition filed against
2. It is alleged that the court erred in overruling the motion to strike the new matter out of the reply, and in overruling the demurrer thereto. The plaintiff by his answer to the petition alleged a want of consideration moving from Suing to him for the execution and delivery of the deed containing the covenants sued upon, and alleged that he never was the owner of the premises, that the purchase money therefor was paid directly by Suing to the defendant Hurlbut. The new matter set forth in the reply was evidently pleaded to meet these allegations of want of consideration. It was tacitly admitted by the reply that the facts stated in relation to the matter of considerar tion in the plaintiff’s answer were true, and it was sought to introduce a consideration other than the one imported by the execution and delivery of the deed itself, and the recitals therein contained, to support the action. This new consideration was an agreement contained in a deed executed and delivered by Hurlbut to Merrill, about eighteen months before the deed in question herein was made, by which it was claimed that Hurlbut conveyed to Merrill lot 15 in block 31, and Merrill assumed and agreed to pay the outstanding incumbrances thereon, including the mortgage set forth in the petition. If it be true that Merrill assumed and agreed to pay this mortgage, the obligation to do so was one existing between himself and the defendant Hurlbut, and which possibly might inure to the benefit of the owner and holder .of the mortgage. No rights could accrue by reason of this agreement to any other persons whomsoever. Suing was not a party thereto, and could acquire no rights thereunder. He must recover in this case, if at all, upon the covenants contained in his deed and the consideration for the'execution and delivery of the same. Again, if Merrill did assume the payment of the f600 mortgage by reason of the recitals contained in the deed for lot 15 in block 31, given him by Hurlbut, when Hurlbut conveyed lots 8 and 9 in
3. If we are correct in this view of the matter it follows' that the court erred in giving instruction No. 4, complained of by the plaintiff herein. By this instruction the jury were told, in substance, that if they believed from the evidence that defendants Hurlbut and wife executed and delivered to defendant Merrill a warranty deed for lot 15 in block 31 for and in consideration of the sum of $2,500, ánd as a part of the purchase price of said lot 15, the defendant. Merrill assumed and agreed to pay the mortgage of $600 covering both lots 15 in block 31 and lots 8 and 9 in block 27, as alleged in paragraph three of plaintiff’s reply, and that said mortgage was foreclosed as alleged in the plaintiff’s petition, and that plaintiff was compelled to yield, surrender and submit to such paramount title, or mortgage foreclosure, and was compelled to pay the sum of money alleged, the defendants were liable, and their verdict should be for the plaintiff. This instruction was clearly
4. It is contended that the evidence is not sufficient to sustain the verdict. It is not shown that defendant was ever dispossessed of the property, or was ever disturbed in his peaceable possession and quiet enjoyment thereof. It is not shown that any one ever demanded possession thereof from him. It is not shown that Merrill ever went into the possession of the property. It is shown that defendant took possession of the property under the title given him by the deeds upon which he bases his cause of action, and that he still holds title thereto and the possession thereof under said deeds. The evidence shows that the whole consideration for the premises was paid direct to Hurlbut, and that Merrill never received the benefit of any of it, even indirectly; that when the suit to foreclose the mortgage was commenced, Merrill was made a party defendant therein, but it was ascertained that he had sold lot 15 in block 31 to one Hirschman, and conveyed it to him by a warranty deed, which contained the recitals that Hirschman had assumed the $600 mortgage, and had agreed to pay it. The action was thereupon dismissed as to Merrill, and he was not a party thereto when the decree of foreclosure was rendered. Merrill testified that he never assumed the $600 mortgage, or agreed to pay it, and that he had paid all of the incumbrances which he had assumed; and the record bears him out in this, because it appears that all of the other incumbrances, and there were several, were paid prior to the commencement of the foreclosure suit. It is not shown that any demand was made upon Merrill to redeem from the mortgage, or pay it off, or in any manner protect Suing against the same. It is not shown that the .sale of the premises under the decree of foreclosure w?is ever confirmed, or that any title whatever was obtained by anyone, by reason of the mortgage or the foreclosure proceedings. It appears' that Suing voluntarily redeemed the premises from the lien of the mortgage without notice to, or . demand u: m, Merrill. It
We therefore recommend that the judgment of the district court be reversed and the cause dismissed.
By the Court: For the reasons set forth in the foregoing opinion, the judgment of the district court is reversed and the cause is dismissed.
REVERSED AND DISMISSED.
85 Am. Dec., 277, and see valuable note on page 280 at end of case. — W. F. B.