40 Ind. App. 662 | Ind. Ct. App. | 1907
Lead Opinion
This is an appeal from a judgment upon a claim against -a decedent’s estate, the assignment of errors having been amended pursuant to permission granted by this court. The claim Avas for damages because of a breach of the covenant against encumbrances in a deed of conveyance of certain lands in Madison County with general warranty, executed by the intestate to the appellant. The court rendered a special finding of facts. "We will state the facts, so far as necessary for the decision of the questions in dispute here, as shoivn by said special findings.
Frederick Bronnenberg, the decedent, was the owner of said lands, and he, with others, on August 16, 1893, filed in
The court stated as its conclusions of law: (1) That the assessments of benefits mentioned in the finding of facts “became and were liens upon the lands of said Frederick Bronnenberg, in the amounts named on the several tracts respectively, and that said liens attached as of the date of the filing of said original ditch petition, to wit, August 16, 1893. (2) That the existence of said liens, and the payment of the same by the plaintiff, did not constitute a breach of warranty sued on in this cause. (3) That the plaintiff is not entitled to recover anything on his claim filed in this cause. ’ ’ The appellant excepted separately to the second and third conclusions of law. Although there is no cross-assignment of error, and no exception was taken on behalf of the appellee to the first conclusion, counsel for the appellee have contended in argument that the first conclusion is erroneous, and it is proper to consider the question so suggested.
The case of Lowry v. Downey (1898), 150 Ind. 364, upon which appellee seems to rely, is not analogous to the case before us. Tn that case appellant and appellees entered into a written contract for the exchange of certain property, each to be free from, and clear of, all liens except that appellant’s property was to have a certain mortgage lien. After the execution of the written contract, and prior to the execution of the deeds, appellees ascertained that there were other liens on appellant’s property in addition to that specified in the contract. Appellees then refused to proceed further in the transaction until appellant either paid, or made provision for the payment of, the same. Appellant, to induce appellees to consummate the trade, verbally agreed to pay and satisfy said liens within ten days, as a further consideration for appel
Judgment reversed, with instructions to the lower court to restate the conclusions of law in conformity herewith, and render judgment accordingly.
Rehearing
On Petition for Rehearing.
By virtue of the statute, the ditch assessment was a lien at the time of the execution of contract and deed. This is supported by abundant authority: Kirkpatrick v. Pearce, supra; Hill v. Bacon, supra; Blackie v. Hudson (1875), 117 Mass. 181; Carr v. Dooley, supra; Hutchins v. Moody, supra; Peters v. Myers (1868), 22 Wis. 602; Lindsay v. Eastwood, supra; Hartshorn v. Cleveland (1890), 52 N. J. L. 473, 19 Atl. 974. Many more cases could be cited.
Petition for rehearing denied.