Kitzman v. Carl

Supreme Court of Iowa

Kitzman v. Carl

110 N.W. 587, 133 Iowa 340

CourtSupreme Court of Iowa

DecidedFebruary 14, 1907

StatusPublished

Cited by8 cases

This text of 110 N.W. 587 (Kitzman v. Carl) 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

Kitzman v. Carl, 110 N.W. 587, 133 Iowa 340 (iowa 1907).

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Opinion

Sherwin, J.—

The defendants A. and Hannah Carl, husband and wife, conveyed to the plaintiff real estate de[341]*341scribed in the deed as follows: The S. E. % °f the S. W. and the east thirty acres of the S. W. %, of section 34, township 77, range 13, containing seventy acres more or less. The deed contained a covenant of general warranty. A regularly platted public street took about 1% acres from the thirty-acre tract, conveyed, and this action was brought on the warranty.

The street line was marked by a fence of long standing, and, when the plaintiff purchased, he well knew that about two acres had been taken from the thirty-acre tract described in the deed -for street use. He testified that the matter was talked over before the deed was executed, and that he understood the amount of land that he would then get under the description in his deed, and that he would get no more until the street was vacated. While parol testimony is not competent to alter the terms of the warranty in the deed, it is competent to show the meaning given by the parties themselves to words and phrases used therein when such meaning would otherwise be doubtful.

The appellant contends that the conveyance of the east thirty acres meant that exact amount and nothing less, notwithstanding the statement in the deed that the entire conveyance was of seventy acres more or less. But his claim is not sustained by the record. Both tracts were conveyed in one deed and together they made the acreage named therein as more or less. It is clearly shown, that the words “ more or less ” were inserted in the deed for the express purpose of providing against liability for the known shortage in the thirty-acre tract. The words “ more or less ” in a conveyance ordinarily mean that the grantor does not warrant the precise quantity of land named therein; “ they import that the actual quantity is a near approximate to that mentioned,” and, if there be no more than a reasonable excess or deficit in the quantity there can be no breach of the covenant in the deed. Hosleton v. Dickinson, 51 Iowa, 244; Boddy v. Henry, 126 Iowa, 31. Furthermore, the sale in [342]*342the instant ease was for a gross sum for the entire tract, and not for a stipulated price per acre.

We think the judgment clearly right, and it is affirmed.

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Sherwin, J.—

The defendants A. and Hannah Carl, husband and wife, conveyed to the plaintiff real estate de[341]*341scribed in the deed as follows: The S. E. % °f the S. W. and the east thirty acres of the S. W. %, of section 34, township 77, range 13, containing seventy acres more or less. The deed contained a covenant of general warranty. A regularly platted public street took about 1% acres from the thirty-acre tract, conveyed, and this action was brought on the warranty.

The street line was marked by a fence of long standing, and, when the plaintiff purchased, he well knew that about two acres had been taken from the thirty-acre tract described in the deed -for street use. He testified that the matter was talked over before the deed was executed, and that he understood the amount of land that he would then get under the description in his deed, and that he would get no more until the street was vacated. While parol testimony is not competent to alter the terms of the warranty in the deed, it is competent to show the meaning given by the parties themselves to words and phrases used therein when such meaning would otherwise be doubtful.

The appellant contends that the conveyance of the east thirty acres meant that exact amount and nothing less, notwithstanding the statement in the deed that the entire conveyance was of seventy acres more or less. But his claim is not sustained by the record. Both tracts were conveyed in one deed and together they made the acreage named therein as more or less. It is clearly shown, that the words “ more or less ” were inserted in the deed for the express purpose of providing against liability for the known shortage in the thirty-acre tract. The words “ more or less ” in a conveyance ordinarily mean that the grantor does not warrant the precise quantity of land named therein; “ they import that the actual quantity is a near approximate to that mentioned,” and, if there be no more than a reasonable excess or deficit in the quantity there can be no breach of the covenant in the deed. Hosleton v. Dickinson, 51 Iowa, 244; Boddy v. Henry, 126 Iowa, 31. Furthermore, the sale in [342]*342the instant ease was for a gross sum for the entire tract, and not for a stipulated price per acre.

We think the judgment clearly right, and it is affirmed.

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110 N.W. 587, 133 Iowa 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kitzman-v-carl-iowa-1907.

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