Van Wagner v. Nostrand

Dillon, J.

This cause may be decided, by stating and applying certain legal propositions.

rdked: nan'ts: warranty, I. The form of the covenant, upon which this action is brought, is the same as that prescribed by the statute. Bev. § 2240, Code, § 1232. Its meaning has been judicially determined in this court, in the leading case of Funk v. Creswell, 5 Iowa, 62,1857 . That decision establishes, that the general covenant of warranty was intended “to include and imply all the usual covenants in a deed of conveyance' in fee simple.” The plaintiff in this action, upon the covenant set out in the statement, has all the rights which he would have had, if the conveyance had contained express covenants of seizin, freedom from incumbrances, right to convey, and the like.

2. — without reservation, II. A conveyance of land, unless exceptions or reservations be therein made, includes not only the earth but everything attached to it, whether by nature, as . . ,, / ’ . herbage, trees, &c., or artificially, by man, as fences, buildings and the like. Touch., 184; Mott v. Palmer, 1 Comst., 564, 1848; West v. Stewart, 7 Barr, 122, 1847; Goodrich v. Jones, 2 Hill, N. Y., 143 ; Walker v. Sherman, 20 Wend., 639 ; Wickersham v. Orr, 9 Iowa, 253 ; Cowden v St. John, 16 Id., 590; Price v. Brayton, ante.

i. — breach of covenant, III. As between vendor and purchaser, the stable standing upon the land at the date of the conveyance, and not being excepted therein, was part and parcel of the land -, . n i _ , and was therefore embraced in the grant, and protected by the covenants. As between the grantor and his tenants, the latter having the right of removal, it was personal estate — not so as between grantor and grantee.

In West v. Stewart, supra, directly in point, it was adjudged by the Supreme Court of Pennsylvania, that the removal of a building by a-tenant, under a prior agreement with the grantor, was a breach of covenant of warranty.

*427 And in Mott v. Palmer, above cited, and also directly applicable, the similar removal of a fence by a tenant, was holden to be a breach of the covenant of seizin. The covenant in suit embraces, as we have seen, both seizin and warranty.

The removal of the stable by the tenant, he having, under the law and his contract with the defendant, the right so to do, was a breach of the covenant contained in the defendant’s conveyance.

4._ knowledge. 6._evi. denoe’misIV. And according to the weight of authority, it is no less a breach if it be assumed that the plaintiff or covenantee knew at the time of the conveyance that the gta^]e was tke property of the tenant, and that the latter had the right of removal. For in an action of covenant the deed governs; and in such an action, by grantee against grantor, the latter cannot, in or(jer to ¿efeat the operation of the covenant, establish by parol the grantee’s knowledge of an incumbrance or defect in the title, or by parol engraft upon the deed exceptions and reservations not therein mentioned. Wickersham v. Orr, 9 Iowa, 253 ; Harlow v. Thomas (strong case), 15 Pick., 66 , 1833; approving Townsend v. Weld, 8 Mass., 146, 1811 ; Mott v. Palmer, 1 Comst., 574, per Bronson, J.; Collingwood v. Irvin, 3 Watts, 306, 1834 ; 1 Greenl. Ev., § 275; 2 Cow. & H., notes, Phil. Ev., 467; and see other authorities cited, and question discussed by Bawle on Cov., 149 to 154.

If the deed, by accident or mistake, did not embrace the contract of the parties; if it was intended by the parties to have excepted the lease and rights of the tenant, equity, on this being satisfactorily established, would correct and reform the conveyance. The defendant did n5t seek relief or redress in this manner.

By examining closely the facts found by the District Court, it will be seen that the court does not even report *428 that the grantee or plaintiff knew that the tenant had erected the stable, or had the right to remove it; nor does 1 it report that it was excepted by parol from the operation of the deed, though if it had, this would, in this action, under the issues, have been unavailing to the defendant. As respects the stable, we are of the opinion, for the reasons above stated, that the judgment of the District Court was correct.

Y. Concerning the lease and the rent, the following principles apply:

a breaci?sof covenant. ° mina The existence of a valid lease at the date of the deed would be a breach of the covenant, entitling the covenantee, or his assignee, at least to no l damages.

Rent is an incident to the reversion. Unaccrued rent would pass to the grantee, and he could collect it by virtue of the grant. Abercrombie v. Redpath, 1 Iowa, 111 ; and cases cited on pp. 114, 115.

i. — ren Not only so, but the defendant, after the grant, would have no right to receive and collect rent thereafter becoming t; due. Id. If he did so he would be liable to the grantee for the amount thus collected, not on breach of covenant, but in assumpsit for money had and received.

The plaintiff (see court’s finding) had no assignment from the grantee of any such cause of action. Therefore he would not be entitled to recover therefor.

The court below allowed him to recover the amount of such rent, at the rate of $7.50 per month, from November 9th to January 1st. This was, so far, erroneous; and to this extent ($12.50) the judgment of the District Court is reversed, and judgment will be entered in this court in favor of the plaintiff for $35, he paying costs of thiá appeal.