41 Neb. 296 | Neb. | 1894
This action was instituted in the district court of Douglas county by defendant in error to recover the sum of certain imposed taxes on the southwest quarter of section 36, township 81, range 39, in Shelby county, Iowa, remaining unpaid at the time the land was conveyed to him. A jury was waived in the district court, and on a trial to the judge thereof judgment was rendered for defendant in error, and plaintiffs in error have prosecuted a writ of error to this court. The case is submitted here on the following agreed statement of facts:
“Upon this-day of-, 1890, at the February, 1890, term of said court, this cause coming on to be tried was heard before his honor George W. Doane, one of the judges of this court, — a jury being waived by the parties hereto, — and afterwards, to-wit, on the 6th day of March, 1890, judgment was rendered herein in favor of the plaintiff; and whei’eas the said defendants are about to prosecute a writ of error from the decision of the said district court to the supreme court of the state of Nebraska, it is agreed between the parties hereto that this cause may be submitted for decision to the supreme court upon the following agreed statement of facts:
“2. On the 16th day of June, 1886, William J. Chausse and Mercy Chausse, of Shelby county, Iowa, conveyed said premises by warranty deed to the defendant Alden K. Riley; that on July 21, 1887, the defendant Alden K. Riley conveyed said premises to the defendant Annie R. Kinkead; that on October 19, 1887, Annie R. Kinkead conveyed the said premises to Thomas B. McCulloch; that on the 7th day of November, 1887, Thomas B. McCulloch conveyed the said premises to William F. Woods and Charles W. Sanborn; that on April 11, 1888, the said Woods and Sanborn conveyed the said premises to the plaintiff herein, Wallace M. Burroughs, who is the owner thereof.
“ 3. That the said real estate was conveyed by the said several grantors to the said several grantees by deeds of general warranty, and that all the said several deeds made by the defendants herein contained, among other things, the following covenants against incumbrance, to-wit: fAnd I, the said [grantor], for myself, my heirs, executors and administrators, do covenant with the said [grantee], and with his heirs and assigns, that I am lawfully seized of said premises; that they are free from incumbrance/ etc.
“4. That at all the times of said several conveyances there existed upon said premises incumbrances other than those mentioned and excepted in any of said deeds, to-wit, valid and subsisting tax liens, to the amount as ascertained and adjudged by the district court.
“5. That on June 25, 1888, the plaintiff herein was compelled to pay, and did pay, to one Elsie Goldschmidt, who had redeemed said property from tax sale, the amount of said taxes, to-wit, one hundred and fifty-six and T§ir ($156.05) dollars.
“ 7. That, as shown by the petition herein, the plaintiff brings suit against the prior grantors of said land and not against his immediate grantors, William F. Woods and Charles W. Sanborn.
“8. That under the law of the state of Iowa a covenant against incumbrance, such as the one in question herein, runs with the land, and can be sued upon by any grantee, however remote.
“9. That all of said deeds were introduced in evidence under the objection of the defendants.
“10. That this agreed statement of facts shall constitute the bill of exceptions herein and be made a part of the record in said case.”
It will be noticed that the suit was not brought against the immediate grantors of defendant (plaintiff in court below), William F. Woods and wife and Chas. W. San-born and wife, but against former grantors in the chain of title who had executed and delivered warranty deeds to the property, and it is claimed that the taxes which defendant in error paid were existing liens at the time of the conveyance by these former grantors. The plaintiffs in error deny that they are liable for the taxes in favor of defendant in error, on the ground that any taxes which were, unpaid at the time of the conveyance by each would be a claim against each in favor only of his immediate grantee and not in favor of subsequent and remote grantees in the title with whom they were not immediately connected in the transaction and had no dealing. It is conceded that by the law of Nebraska, where the deed to defendant in error was executed, the covenant against incumbrances is a personal one
Counsel for plaintiff in error cite the case of Bethell v. Bethell, 54 Ind., 428, as sustaining their position, also Craig v. Donovan, 63 Ind., 513. The case of Bethell v. Bethell, supra, held: “Where a deed is executed in this state between citizens thereof conveying lands situated in another state, without any covenants, the law of the latter state cannot be made to extend beyond her borders, so as to make such deed contain a covenant of seizin.” In the text of the opinion it was stated: “The supposed covenant in this ease, then, was one that did not run with the land. It was purely personal and broken as soon as entered into. It was not so connected with the land that any subsequent grantee thereof could take advantage of it. The question is therefore narrowed down to this: Can a deed executed in Indiana between citizens thereof, containing no covenants whatever according to the law of Indiana, be held, by virtue of the law of Missouri, where the land lies, to contain a covenant not running with the land, but broken as
It will be seen that the Indiana court has not at all times adhered to the same doctrine on the subject here involved, but in Worley v. Hineman, supra, which is the latest decision of that court on the point herein under discussion, it may be said to support the contention of plaintiff in error. On the other hand, we find in Kling v. Sejour, 4 La. Ann., 128, it was held: “ What constitutes title and what seizin — or, in the language of our law, the possession, as owner, of immovable property, — must be determined by the law of the place where it is situated, and that is the only law which can determine whether a covenant of title and seizin has been broken or not.” In Succession of Larendon, 39 La. Ann., 952, it was held: “ The rights and obligations arising under acts passed in one state to be executed in another, respecting the transfer of real estate in the latter, are regulated, in point of form, substance, and
In Tillotson v. Prichard, 14 Atl. Rep. [Vt.], 302, the following rule is announced: “ In an action of breach of covenant of warranty, where the grantor resided in Vermont, the grantee in New Hampshire, and the land was situated in Minnesota, the construction of the contract, in eluding the rule as to damages, is governed by the law of Minnesota,” — and the further statement in the body of the opinion: “ The covenant sought to be enforced was contained in a deed executed in Vermont; the grantor domiciled there, the grantees in New Hampshire. The land described in the deed was located in Minnesota. The question arises, by what law is the contract to be governed? The defendant insists (see brief, point 1) that the question ‘must be decided according to Minnesota law,’ and the plaintiff’s counsel invoke the aid of that law upon the questions of the execution of the deed and the transitory character of the action. The contract, being one which could only be performed in Minnesota, the parties evidently
We are satisfied that the rule which allows the law of the state wherein the land is situated to prevail, and the ■covenant to be construed, in reference to whether it runs with the land, to be determined by such law, is consonant to or with the soundest and best reasoning, and hence we will adopt it. There is a further thought which moves us to this conclusion: If the other doctrine were held superior, if a tract of land was sold, and deed executed in Texas, then by the grantee conveyed by deed executed in New York, and thus through any number of conveyances, each in a different state from any other, there would arise many complications, and much confusion and uncertainty in the relief afforded the litigants under the covenants of the deeds, construed by the differing laws of the states on the subject, — in some running with the land and in others not; some parties being confined in the right,of action to immediate grantors, others allowed to make a selection,— while, on the other hand, the rule which we are convinced will be productive of the best results, and more certainty of justice to litigants, will adjust the rights and administer relief to each and every one and all concerned, according to the same construction, the law of the state or place where the real estate is situate.
Aeelrmed.