57 Neb. 329 | Neb. | 1899
This is a suit by Benjamin F. Troxell to foreclose a mortgage on lot 1 of Troxell’s subdivision of lot 3 of Geise’s addition to the city of Omaha, executed by William. Stevens, one of the defendants. Several judgment creditors of Stevens were made defendants, who appeared in the cause and set up their judgments. The Somerset Trust Company presented an answer and cross-petition, praying the foreclosure of a tax-sale certificate. William J. Stevens filed an answer, pleading a counterclaim for damages for breach of the covenant of warranty in a deed to the mortgaged premises made by plaintiff to Richard S. Maulsby, said Stevens’ immediate grantor. Jennie E. Stevens answered; asserting a lien
It is disclosed that one Francis Leon Englebert, a minor, Avas the former owner of the lot described in the mortgage, and while remaining such owner he executed a deed conveying the same and other real estate to one George E. Pritchett, who conveyed the property to Adolph Meyer. The latter sold and conveyed to John I. Reddick, .Avho executed a deed to the premises to Troxell, the plaintiff and appellant herein. On NoAmniber 10, 1887, by deed of general warranty he conveyed to one Richard S. Maulsby, avüo Avith covenant of warranty deeded the lot to Peter Ulrich, and the latter subsequently quit-claimed his interest in the property to his said grantor. Afterwards Maulsby executed a conveyance to the premises to William J. Stevens, and the latter subsequently ga\Te the mortgage in suit. On August 17,1893, William J. Stevens, by deed of quitclaim, conveyed said lot 1 to Jennie E. Stevens.. On November 14, 1889, shortly after Francis Leon Englebert had reached his majority, he instituted in the district court of Douglas county a suit against said George E. Pritchett and the other persons
It is argued on behalf of plaintiff that there has been no breach of his covenant of warranty, because he defended the title to the lot in the district court, as well as here on appeal, as he agreed to do by the covenant of his deed, and when defeated in the court of last resort he purchased the Englebert title, thereby preventing an ouster of William J. Stevens and his grantee, Jennie E. Stevens. Section 51, chapter 73, of the Compiled Statutes is invoked to support this line of argument, which section declares: “When a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor to the extent of that which the deed purports to convey, shall accrue to the benefit of the grantee; Provided, how-' ever, That such after-acquired interest shall not inure to the benefit of the original grantor, or his heirs or assigns, if the deed conveying said real estate was either a quitclaim or special warranty,” etc. This piece of legislation makes an after-acquired interest' in real estate by a grantor inure to the benefit of the grantee only, where the deed purports to convey a greater interest or estate
William J. Stevens cannot recover on the covenant of warranty for another reason. Prior to the bringing of this suit he executed and delivered a quitclaim deed to the premises to Jennie E. Stevens, thereby • conveying to her any cause of action he may have for breach of covenant of ’warranty. The covenant in Troxell’s deed was not broken when made. He at that time possessed title to the lot, which was perfect until Englebert dis-
We pass now to the consideration of the question whether Jennie E. Stevens is entitled to a decree for the sale of the premises to pay the value of the lasting improvements placed on the lot by her grantor. As heretofore stated, the value of the real estate without the improvements, and the value of the improvements alone, were appraised under chapter 63, Compiled Statutes, entitled “Occupying Claimants.” The sections of said chapter which have a bearing on this branch of the case read as follows:
“Sec. 7. If upon the final hearing there shall be found, a balance in favor of the occupant or unsuccessful claimants, the person proving the better title may either demand of the occupant or claimant the value of the real estate without improvements as shown by the appraisement, and tender a general warranty deed for'the real estate in question to such occupant or claimant, or he may pay into court the balance so found due such occupant, or claimant within such time as the court shall allow in its final decree.
“Sec. 8. If the successful claimant shall elect to pay and does pay to the occupant or claimant the balance fQund due him on the final hearing within such time as the court shall direct, then a writ of possession shall be issued in his favor against such occupant, or decree shall be entered against such unsuccessful claimant as the case may require.
“Sec. 9. If the successful claimant shall elect to receive the value of the real estate without improvements,*338 to be paid by the occupants or claimant within such time as the court shall direct, and shall tender a general warranty deed for such real estate to the occupant or claimant, and such occupant or claimant shall refuse or neglect to pay said sum of money to the successful claimant within the time allowed by the court for that purpose, then such successful claimant shall deposit with the clerk of the court the amount found due the occupant or claimant, and thereupon a writ of possession shall be issued in favor of such successful claimant, or decree shall be entered in his favor as the case shall require.
“Sec. 10. The occupant or claimant shall in no case be evicted front possession, or deprived of his right in the premises, except as provided in the two preceding sections, and in case the successful claimant shall neglect to elect to take said real estate with improvements, or to convey the same to the occupant or claimant within such time as the court shall direct, then decree shall be entered in favor of the occupant or claimant upon his payment into court the value of the real estate without improvement. Such decree shall have the effect to transfer and convey to such occupant or claimant the title and rights of the successful claimant.”
By the provisions of said sections Englebert had the right to elect to demand from the occupant the value of the lot in question without the improvements as determined by the appraisers in the case of Englebert v. Troxell, and approved by the court, and tender a general warranty deed for the premises to such occupant, or pay the amount found by the appraisers for valuable and lasting improvements placed upon the lot; and in case he chose the second alternative and complied therewith within the time that should be named by the court, he was entitled to a writ to dispossess the occupant, or the rendition of a decree in his favor, as the nature of the case should suggest.' Englebert had the option to either accept the assessed value of the land without the improvement or keep the lot; and Troxell, being’the owner
The decree of the district court in the present case is reversed and the cause remanded with instructions to enter a decree foreclosing plaintiff’s mortgage, as well as the tax lien in favor of the Somerset Trust Company, giving the lien for taxes priority over the mortgage, and decree that William J. Stevens has no claim or interest in the property; that Jennie E. Stevens has a lien on the lot for the value of the lasting and valuable improvements placed thereon, as ascertained and found by the appraisers, and is entitled to retain the possession of the lot until said sum is paid, or the land is sold as provided by decree; that the plaintiff has the option to pay the value of the improvements at any time within sixty days after the entry of the decree, and upon the payment thereof to the clerk of the district court for
Reversed and remanded.