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Kerr v. Fee

179 Iowa 1097
CourtSupreme Court of Iowa
DecidedFebruary 19, 1917
StatusPublished
Cited by4 cases

This text of 179 Iowa 1097 (Kerr v. Fee) 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
Kerr v. Fee, 179 Iowa 1097 (iowa 1917).

Opinion

Ladd, J.

1. Boundaries: waters-and watercourses: “bank” of The plaintiff purchased a tract Of 55 acres Of land Of defendant, paying therefor $160 per acre. There being 0 x 0 doubt as to the number of acres, defendant, with Wright as surety, executed a bond, which, after reciting the purchase of the land, describing it, reciting the price paid, that defendant had warranted that there were not less than 55 acres, and that some .question had arisen as to the number of acres conveyed, reads:

“Now therefore, in consideration of the above payment, [1098]*1098we, Charles Luther Fee, as principal, and O. L. Wright, as surety, are held and firmly bound unto the said Catherine Kerr in the penal sum of $1,000, for the payment of which, well and truly to be made, we do bind ourselves, executors and assigns. The condition of the foregoing obligation is such that if, upon a survey, caused to be made by Catherine Kerr, of the real estate above described, it shall be found that said tract of land conveyed contains less than 55 acres, and if the said Charles Luther Fee shall then pay to the said Catherine Kerr $160 per acre for any shortage, then this obligation to be void; otherwise to remain in full force. It is provided, however, that, if the said Charles Luther Fee shall not be satisfied with the correctness of the survey, caused to be made by Catherine Kerr, he may then, within 30 days after being advised of the result of such survey, 'cause said tract of laird to be surveyed by another survey- or, and if the result of the survey made by the two surveyors shall not agree, then said surveyors shall select a third surveyor to survey the same and figure the acreage, and the said parties agree to abide by the decision of such third surveyor. If, however, the said Charles Luther Fee shall not cause the said tract of land to be surveyed by another surveyor within 30 days from the time the result of the first survey has been communicated to him, it is then agreed that the result of said survey shall stand and be considered as correct and binding between the parties.”

Other provisions have no bearing on this controversy. Plaintiff caused a survey to be made, and on May 31, 1915, notified the defendants that, as a result of the survey, there was a shortage of 2.77 acres, and compensation at $160 per acre was claimed. No survey was made in behalf of defendants. The object of this action is to recover that amount on the bond. The plat below indicates- the location of the land, and the survey as made at the instance of plaintiff:

[1099]*1099

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Bluebook (online)
179 Iowa 1097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerr-v-fee-iowa-1917.