151 Iowa 214 | Iowa | 1911
In December, 1902, the defendants herein claiming to own a certain residence property' in the
In a second count plaintiff further asks to recover for permanent improvements placed on the property by her before the discovery of the defect in her title, for expenses incurred by her in the case of Strothers v. Woodcox, supra, and for taxes and -other expenses incurred in the maintenance of said property, against which she offers to credit the reasonable rental value thereof during the time of her
Before answering, defendants moved to transfer the second count of the petition to the law calendar for trial, which motion was overruled and error is assigned thereon. Defendants then answered, admitting the sale and conveyance of the property as alleged in the petition and the receipt of the purchase price in the sum named. They admit the subsequent discovery of the defect in the title so conveyed, and that upon consultation between the parties an action to quiet title in plaintiff was instituted, and that defendants agreed to pay the expense thereof, but deny that it was begun at their request. They also aver that the rental value of the premises during the plaintiff’s occupancy has been much in excess of legal interest on the purchase price thereof, and in excess of all expenditures by plaintiff for improvements, repairs, insurance, and other incidental expenses. Defendants further allege that after the discovery of the defect in said title the plaintiff affirmed the conveyance to her hy claiming and exercising rights thereunder as purchaser and owner, and thereby waived her right, if any she had, to rescind the deal or demand a return of the money paid hy her.
On hearing the evidence, the trial court entered a decree for plaintiff for the ■ rescission of the conveyance and for the recovery of the purchase price, with interest thereon, together with amounts expended for taxes, insurance, and repairs, and for the cost of constructing a permanent sidewalk and certain unpaid costs and expenses incurred in the case of Strothers v. Woodcox, supra; said allowances aggregating the sum of $4,233.75, upon which there was applied a credit for the rental value of the property while in the occupancy of the plaintiff, aggregating $1,260, leaving a remainder due to plaintiff of $2,973.75, for which judgment was entered.
We are more satisfied with this conclusion from the fact that were appellants’ • contention as to appellee’s appropriate remedy to be sustained by us and a reversal ordered,- or the cause remanded as an action at law upon a breach of the covenant of seisin, plaintiff’s recovery, in view of her practical ouster by the adverse decree in Strothers v. Woodcox, would be assessed upon substantially the same basis as a rescission, i. e., a return of the money paid, with lawful interest. 2 Sutherland, Dam. (3d Ed.) section 593. We have no doubt, however, of the propriety of the remedy here employed or of the justice of the conclusion reached by the trial court. Affirmed.