Van Driel v. Rosierz

26 Iowa 575 | Iowa | 1869

Wri&ht, J.

The petition claims damages for cutting timber, and for other waste. As the court below did not allow any thing for this, we dismiss this part of the case without further notice. Nor was defendant allowed any thing “ for repairs.” The answer setting up the same is denied; the evidence is not before us; we can only presume that this part of defendant’s case was not sustained, and thus far the judgment below must stand affirmed.

The material questions, however, relate to the action of the court in admitting the bond from defendant to Yan Dam in evidence, and in holding that, by the assignment of said bond to plaintiff and delivery of the lease, he succeeded to the rights of Yan Dam, and was entitled thereby to the rents and profits. And in this connection it is claimed that, by the assignment to Thompson, the right to recover for said rents passed to him, and that it did not, after that time, remain in plaintiff.

The assignment, by its terms, was more than a mere transfer of. the writing, or bond. It invested plaintiff with all the right or interest held by the vendee (Yan Dam), by virtue of said bond or contract. As such it was most important and legitimate evidence, as tending to show his interest in the land. How much it proved is not now a question. It certainly was not, as appellant insisted in the court below, “ immaterial.” Whether the assignment with-the delivery of the lease invested plaintiff with the right to recover, is, however, the very question, and the other, hence, becomes unimportant.

And remembering that the transfer was made before the rent accrued, that the lease was for a year, and a stipulated rent named, that by the transfer plaintiff took the reversion to which the rent attached (in the absence of reservation), as an incident, — we say, remembering these things, the case is covered by what was ruled in Abercrombie v. Redpath (1 Iowa, 111), and the cases there cited. As the correctness of the rule there recognized is not controverted, we need not stop to maintain it. Not only so, but under tbe statute, plaintiff (if not precluded by Ms own assignment to Thompson) would be the real party in interest, and as such, could properly sue, though the assignment did not in terms or in so many words, speak of or specify the rents. ■

And as to the sale to Thompson, we need only say that this was long after the rents accrued, and it would not pass by such mere assignment, without other words or circumstances, showing that it was intended to transfer this debt or accrued claim. It would not pass with the land. Plaintiff’s right to the rent was not an interest in the land, which passed to Thompson by the transfer to Mm. It was his personal claim, and was no more transferred than any other demand which he might have held against the lessee or the defendant who had then received the rents to Ms own use.

Affirmed.