Shorthill v. Ferguson

44 Iowa 249 | Iowa | 1876

Adams, J.

I. The plaintiffs, to sustain the issues on their part, offered in evidence a certified abstract from the Commissioner of the General Land Office, Washington, D. C., as follows:

O. Department of the Interior, General Land Office, May 1st, 1874.

I, W. W. Curtis, Acting Commissioner of the General Land Office, do hereby certify that the annexed is a true and literal exemplification from the records of this office of Sec,. 3, Tp. 86 N., Range 29 west, Iowa.

In testimony whereof I have hereunto subscribed my name, and caused the seal of this office to be affixed, at the City of Washington, on the day and year above written.

W. W. Curtis,

l. s. y . Acting Commissioner Of General Land Office.

Township 86, Range 29.

1. conveyot contract?11 damages. The defendant objected to the admission of the abstract, but the court overruled the objection and admitted it. We are of the opinion that it was admissible as prima facie evidence that the land did not pass under the swamp ]ancl grant. The burden of proof was then cast upon the defendant to show that it did. As no such proof was offered by defendant, the plaintiff was entitled to recover. It is true the title to said land might be perfected in plaintiffs if the same could be proven to be properly swamp land, and it is for this reason that the District Court held that plaintiffs could recover only attorney’s fees and costs. But we are of the opinion that, the plaintiffs have a right under their covenants to a title, the validity of which is not subject to the contingency of making such proof, and, inasmuch as it appears that they have not acquired such title, they may recover the same damages which they would be entitled to if the failure of title had been absolute.

measure of damages. II. What then is the measure of the plaintiffs’ damages? ' Are they limited to the amount of the real consideration received by defendant from his grantee, Johnson, or may they recover the amount as expressed in defendant’s deed to Johnson? Parol proof of consideration to contradict that expressed in the deed is admissible as between the original parties, but it is not admissible in a suit against the original grantor by one to whom his grantee has transferred the land. Greenvault v. Davis, 4 Hill, 643. We are of the opinion, therefore, that the plaintiffs are entitled to recover upon tender of conveyance to defendant the sum of five hundred dollars and interest thereon at six per cent from the date of their deed. We do not think they should be allowed interest from date of-defendant’s deed, because while the defendant may be presumed to have received payment for the land at that time, the plaintiffs are entitled to recover only their actual damages, to-wit: The value of the land with six per cent interest from the time they purchased. To determine that value they may show the consideration in the defendant’s deed, which is to be taken as a conclusive admission by defendant that such is the value. -o

Reversed.