190 Iowa 237 | Iowa | 1920
— Plaintiff instituted this action against defendants, except Mayer Bros. Company, to recover for breach of covenants of warranty of a deed made by defendants to Z. W. Thomas, a prior grantor to plaintiff and plaintiff’s assignee, covering the northeast quarter of the southeast quarter of Section 8, and the southwest quarter of the northwest quarter of Section 9, Township 146, Range 41 West of the 5th P. M., Mahnomen County, Minnesota. The covenants of warranty in the deed are:
“That they are well seized in fee of the land and premises aforesaid, and have a good right to sell and convey the same in the manner and form aforesaid.”
The above-mentioned conveyance was alleged, and is admitted by defendants.
Plaintiff alleges that Z. W. Thomas, grantee in above-mentioned deed, subsequently conveyed the real estate above described to D. E. Thomas, this plaintiff, and one J. C. Walburger; and that said J. C. Walburger has assigned his claim for damages for breach of warranty to this plaintiff. Plaintiff further alleges that, subsequent to the conveyance of said land to plaintiff and Walburger, one Edson S. Gaylord instituted an action in the district court of Mahnomen County, state of Minnesota, for the possession of and to quiet title to said real estate in him as against plaintiff and J. C. Walburger, based upon a con
Defendants admitted that, on December 19, 1910, they executed and delivered to Z. W. Thomas a warranty deed to the real estate above described, and denied the other allegations made by plaintiff.
Defendants offered no evidence.
Defendants objected to the introduction of the copy of the trust patent from the government to Nay gwon ay be Jekein, on the ground that no foundation had been laid for secondary evidence. On this point, the record shows that plaintiff sought to obtain the original patent, but was unable to do so, and that the original patent was probably burned. The copy of the patent, which was duly certified, was properly received.
Tbe deed is signed by thumb mark.
Tbe testimony of Nay gwon ay be Jekein, with tbe deed itself, certainly made tbe deed competent evidence of tbe conveyance of tbe land. Whether tbe grantor in tbe deed to Gay-lord was tbe same person as tbe grantee in tbe patent was a question of fact.
‘ ‘ Tbe court admits tbe decree for one purpose only, and tbat is to show tbe fact of eviction of plamtiff from tbe land in controversy, and tbat by said decree tbe right, title, and interest was quieted in tbe plaintiff Gaylord as against tbe plaintiff in this case.”
Unquestionably, tbe ruling of tbe court was correct in admitting tbe decree of tbe Minnesota court for tbe purpose of showing ouster of the plaintiff and Walburger. Tbe ruling was as favorable to defendants as they were entitled to. Tbe decree was at least competent to show eviction.
Tbe term “eviction,” as used by tbe court in bis ruling, we take it, means dispossession or ouster. Tbe term is often
The trial court very properly received the decree in evidence for the purpose of showing eviction or dispossession of the plaintiff and his assignor, and left the question of paramount title to be otherwise established, if proven at all.
“I know it was signed some time, and signed when we were talking of the institution of the proceedings.”
We think the court properly admitted the assignment in evidence.
In Davis v. Smith, 5 Ga. 274, it is held that such a decree—
"Has the force and effect of a domestic judgment. There it would be evidence of eviction, notwithstanding the administrator [or covenantor] did not appear and defend; it is the stronger evidence of a breach, on that account. Here it is evidence of the same fact.”
Some courts hold that such a decree is prima-faeie evidence, in an action against the covenantor for a breach of his covenant, of a paramount title in another. Mason v. Kellogg, 38 Mich. 132. In this case, the court said:
"The judgment is a piece of lawful evidence in an action upon the covenant, the difference being that, if it turn out that the covenantor was not adequately warned,' — was not, in substance, a party, — the judgment, instead of being final as against him, is merely prima-faeie evidence of the validity of the title it purports to validate, and is disputable.”
However, we think the weight of authority inclines to the position that the record of an adverse proceeding may be evidence of eviction, but that it is not even prima-faeie evidence that such eviction was under title paramount against one who was not a party or privy to the proceedings. It is held by all authorities that the purchaser may protect himself, when sued under adverse title, by giving notice to the party bound by the covenants, and requiring him to defend in the suit; but it is not necessary to his recovery in the action on the covenants that such notice be given. The difference is that, if the covenantor was made a party in the original action, or properly vouched into the action to defend, then the proceedings and judgment and decree in the case are conclusive as to all .matters wherein the issues in the cases are the same: that is, the finding of paramount title, if it is so found, is conclusive on that question. But if the covenantor is not made a party, or properly notified to defend, a finding of paramount title is not binding
Whatever the rule may be as to burden of proof is of little or no importance in this case. It is not necessary to determine that question in this action. The plaintiff assumed the burden of proving the paramount title of the land in controversy in Ed-son S. Gaylord, by alleging specific conveyances constituting a perfect chain of title from the government down to Gaylord. On the trial, the plaintiff assumed the burden, and introduced evidence of patent from the United States of America to Nay gwon ay be Jekein, and from Nay gwon ay be Jekein to Edson S. Gaylord.
Counsel for appellants, throughout his able argument, in
We have examined the record as to all of the assignments, and find no error in the record. The judgment of the trial court should be and is — Affirmed.