Hoover v. Mores

Supreme Court of Iowa

Hoover v. Mores

36 Iowa 653

DecidedJune 19, 1873

StatusPublished

This text of 36 Iowa 653 (Hoover v. Mores) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hoover v. Mores, 36 Iowa 653 (iowa 1873).

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Opinion

Day, J.

— I. The defendant Mores claimed that the court erred in requiring the deed from plaintiff to be produced, because there had been no notice to him that such deed was in existence, and there is no allegation of a tender in the pleadings ; and he insists that he was taken by surprise, by the production of the deed. Under the circumstances of this case the ruling of the court was right. The defendant in his answer relied upon a full offer of performance upon his part, and a refusal of plaintiff to deliver a deed.

No replication is admissible to this answer under our system of pleading, but without reply the plaintiff is permitted to introduce any competent evidence for the purpose of rebutting the affirmative case made by defendant. To sustain the case on his part, the defendant testified, not to a refusal of plaintiff to deliver a deed, but to the offer of a deed which, in the judgment of defendant, did not answer the requirements of the bond, and which he accordingly refused. What evidence more competent and proper, in determining whether plaintiff had failed as alleged, than the production of the deed itself, from which its sufficiency could be determined by the court ? And why need defendant be notified of the existence of such deed, when he had himself testified to such existence, and given his opinion that it was not a compliance with the bond ?

II. It is next claimed that the court erred in admitting the deed in evidence as a warranty deed, because the interlineations in the deed of the words, “ except judgments a/nd claims agcmist one Lewis Bacher,” constitutes a cloud upon the title to the land. Lewis Bacher is the party to whom the bond was originally executed. If he had retained the bond and plaintiff had deeded to him, he would not have been required to covenant against the acts of Lewis Bacher done since the agreement of sale was executed. Then can Mores occupy any better position than his assignor Bacher ? Or can Bacher, by an assignment of the bond, cast upon plaintiff obligations which did not before exist ? Certainly not. The contract was [656]*656made in 1863. It was not to be completed until 1869. In tbe mean time, by the agreement, Bacher was to pay the taxes which might accrue. Must plaintiff execute to Mores a deed of warranty against these taxes ? To ask this question is to answer it. It is claimed that there may have been liens against Bacher upon this land ante-dating the contract. This could not have been unless the title had before been in him, and of this there is no proof whatever. The deed was a sufficient compliance with the requirements of the bond.

III. Next it is urged that the court erred in rendering judgment that Mores pay a sum of money and take the deed, because no such relief is asked by plaintiff, and the court had no jurisdiction to make such order. The defendant, however, alleges that he tendered the plaintiff the amount due and deposited the same with the clerk, to be paid upon the delivery of a sufficient deed. Such a deed has been offered. Surely defendant cannot complain that he is allowed the option of doing what he offered to do. If he does not wish the land for the money, under the judgment of the court he need not take it. He may allow the bond to be foreclosed and the land sold under special execution.

IT. It is claimed that the court erred in rendering judgment for $422.06, because the money was tendered and the tender was kept good. But the evidence shows that the tender was made only upon condition that plaintiff delivered a deed other than the one offered in evidence, whilst we find that the deed offered by plaintiff is sufficient in law and a compliance with the bond.

The defendant, therefore, is at fault for the failure of the completion of the contract by the acceptance of the money and the delivery of the deed. He exacted terms in his tender which he had no right to demand, and hence his tender does not avail. The judgment of the court below is right, and is

Affirmed

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Day, J.

— I. The defendant Mores claimed that the court erred in requiring the deed from plaintiff to be produced, because there had been no notice to him that such deed was in existence, and there is no allegation of a tender in the pleadings ; and he insists that he was taken by surprise, by the production of the deed. Under the circumstances of this case the ruling of the court was right. The defendant in his answer relied upon a full offer of performance upon his part, and a refusal of plaintiff to deliver a deed.

No replication is admissible to this answer under our system of pleading, but without reply the plaintiff is permitted to introduce any competent evidence for the purpose of rebutting the affirmative case made by defendant. To sustain the case on his part, the defendant testified, not to a refusal of plaintiff to deliver a deed, but to the offer of a deed which, in the judgment of defendant, did not answer the requirements of the bond, and which he accordingly refused. What evidence more competent and proper, in determining whether plaintiff had failed as alleged, than the production of the deed itself, from which its sufficiency could be determined by the court ? And why need defendant be notified of the existence of such deed, when he had himself testified to such existence, and given his opinion that it was not a compliance with the bond ?

II. It is next claimed that the court erred in admitting the deed in evidence as a warranty deed, because the interlineations in the deed of the words, “ except judgments a/nd claims agcmist one Lewis Bacher,” constitutes a cloud upon the title to the land. Lewis Bacher is the party to whom the bond was originally executed. If he had retained the bond and plaintiff had deeded to him, he would not have been required to covenant against the acts of Lewis Bacher done since the agreement of sale was executed. Then can Mores occupy any better position than his assignor Bacher ? Or can Bacher, by an assignment of the bond, cast upon plaintiff obligations which did not before exist ? Certainly not. The contract was [656]*656made in 1863. It was not to be completed until 1869. In tbe mean time, by the agreement, Bacher was to pay the taxes which might accrue. Must plaintiff execute to Mores a deed of warranty against these taxes ? To ask this question is to answer it. It is claimed that there may have been liens against Bacher upon this land ante-dating the contract. This could not have been unless the title had before been in him, and of this there is no proof whatever. The deed was a sufficient compliance with the requirements of the bond.

III. Next it is urged that the court erred in rendering judgment that Mores pay a sum of money and take the deed, because no such relief is asked by plaintiff, and the court had no jurisdiction to make such order. The defendant, however, alleges that he tendered the plaintiff the amount due and deposited the same with the clerk, to be paid upon the delivery of a sufficient deed. Such a deed has been offered. Surely defendant cannot complain that he is allowed the option of doing what he offered to do. If he does not wish the land for the money, under the judgment of the court he need not take it. He may allow the bond to be foreclosed and the land sold under special execution.

IT. It is claimed that the court erred in rendering judgment for $422.06, because the money was tendered and the tender was kept good. But the evidence shows that the tender was made only upon condition that plaintiff delivered a deed other than the one offered in evidence, whilst we find that the deed offered by plaintiff is sufficient in law and a compliance with the bond.

The defendant, therefore, is at fault for the failure of the completion of the contract by the acceptance of the money and the delivery of the deed. He exacted terms in his tender which he had no right to demand, and hence his tender does not avail. The judgment of the court below is right, and is

Affirmed

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36 Iowa 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoover-v-mores-iowa-1873.