Zent v. Picken

6 N.W. 750, 54 Iowa 535

• Court: Supreme Court of Iowa
• Decided: October 7, 1880
• Status: Published

Opinion

Day, J

i. convey : nants otove’ of. ‘ I. The facts found by the court are fully sustained by the evidence. The case may be rendered plainer by a more particular statement of some facts. The eight acre tract in question, intended to be conveyed to defendant, was uninclosed timber land. In 1863 it was sold for the delinquent taxes for the years 1851 to 1862, both inclusive, and on the 22d day of May, 1867, a treasurer’s deed therefor was duly executed to Pliny Sexton & Son, nothing appears in the case, affecting the validity of the tax deed. On the 17th day of October, 1867, the plaintiff executed to the defendant the deed in which this land was intended to be described, and in which he covenants that he is lawfully seized in fee simple of the premises. It is apparent that,-at the time this covenant was made, the plaintiff was not lawfully seized in fee simple of the premises, but that he had in fact no title thereto whatever. The covenant of seizin was, therefore, broken as soon as the conveyance was delivered, and it is not necessary to prove an ouster or eviction. Brandt v. Foster, 5 Iowa, 287.

2. —:-: constructive possession. II. The plaintiff, at the time of the execution of the conveyance intended to cover the eight acres in question, executed to the defendant a conveyance for one hundred . and sixty acres oí prairie land, situated some two miles distant, and placed the defendant in possession thereof.

It is now claimed that the possession of this land carried with it the constructive possession of the eight acres, and that as there has been no actual eviction, the defendant is at the most entitled to but nominal damages.

■The actual possession of the part of a tract may carry with it the constructive possession of the whole of the tract. But we know of no rule of law which authorizes the holding that the possession of one tract carries with it the constructive possession of another tract two miles distant. Besides, the answer alleges, and the proof shows, that Cook, the grantee of the holder of the tax title, took possession of the land in 1876, and that he has been in possession ever since. It, therefore, appears not only that the defendant has never been in possession but that he cannot take possession.

III. The tax deed under which Cook claims was executed in 1867. Cook did not take possession of the land until 1876. If we understand the position of appellant upon this branch of the case it is that the right to recover under the tax deed was barred by the statute of limitations before Cook took possession, that defendant might have gone into possession and held the land, and that, having failed to do so, he can recover only nominal damages. But, the land being unoccupied, the tax title carried with it the constructive possession, and after the lapse of five years the tax title became absolute. Moingona Coal Co. v. Blair, 51 Iowa, 447.

3. —:-: damages.

IY. It is claimed that, at the most, the defendant can rebate the plaintiff’s recovery only to the extent of $150, and interest thereon at six per cent. In Brandt v. Foster, supra, it is held that the measure of damages for breach of covenant of seizin is the consideration money and interest. Where the consideration money has been paid, the' interest recoverable is limited to six per cent, as no greater interest can be allowed unless stipulated for in writing. But in this case the consideration money has not been paid. It is evidenced by a note bearing interest at ten per cent. There has been an entire failure of consideration for the note to the extent of $150, and hence, to that extent, there should be no recovery. The position of appellant is that, notwithstanding the entire failure of title to the land, the plaintiff must be allowed $150 with interest at ten per cent, and the defendant be permitted to rebate therefrom $150 with interest at six per cent. In other words, that the plaintiff shall recover' interest, at the rate of four per cent, upon $150 for a period of nearly thirteen years, although there was in fact no consideration for the promise to pay the. $150. Such a result is so inequitable that we are satisfied that no rule of law requires it. The true rule is that if no title has been conveyed, and no benefit has accrued, no recovery can be had.

Y. It is claimed that the defendant does not plead a counter claim, nor ask damages. The defendant alleges a failure of consideration, and he pleads the same as a set-off, and that he has been damaged in the sum of four hundred .dollars. We' regard the answer of the defendant as sufficient to authorize the relief granted by the court. The judgment is

Affirmed.