Puttman v. Haltey

24 Iowa 425 | Iowa | 1868

Beck, J.

The evidence satisfactorily sustains the allegations of the petition in regal'd to the agreement to convey to plaintiff the use and possession of the right of way, and the other material averments. Against plaintiff’s right to relief, however, the defendant urges the following objections:

1. Conveyance: contract: description I.That the contract is not sufficiently certain as to the

way itself to authorize the court to enforce specific per- performance thereof. ¥e think this objection is not well taken. The point of commencement fixed by the terms of the agreement and' may be readily determined by the government surveys, and the actual terminus is declared by the contract and ascertained by the road which the way in controversy intersects. Though the length is uncertain, as stated in the contract, yet it is, in fact, certain, as fixed by the other descriptions. Certain and fixed points, courses and monuments control distances; these being given in this contract, the road can be determined with mathematical certainty.

2. — contract. II.It is urged, that the contract between the parties is contained in the deed conveying the land to plaintiff, and cannot be varied or extended to include a right of way. But it is very evident that the deed has nothing whatever to do with the contract, farther than it was executed for the purpose of carrying it out in part. It is not between the same parties who made the contract, and in no sense does it contain that contract.

3. — consideration. III.It is contended, that inasmuch as the deed recites that the consideration for the land is $500, which was the only consideration paid by plaintiff to defendant, and as it cannot be shown to be less or cannot be shown, that any part of the amount paid by plaintiff was in consideration of the right of way, and it must be conclusively taken, that the money was paid for the land and the land only. But the deed is not the contract of the parties to this suit, and does not embody the different, being incapable of contradiction, therefore it . contract which plaintiff seeks to enforce. If it were, the consideration could be truly shown to be different from that expressed in it. Lawton et ux. v. Buckingham, Admr., 15 Iowa, 22.

4. specific ANCE^ught of way. ,. IY. The defendant insists, that plaintiff’s only remedy, in case the contract is found to exist and can be supported, is an action for damages, and that an agreement of this character for the conveyance of a right of way will not be specifically enforced. This court has held otherwise. Wetherell v. Brobst, 23 Iowa, 586.

"We find no well .founded objections in the record to the proceedings. The decree of the District Court is therefore

Affirmed.