Shorthill v. Ferguson

Rothrook, J.

This cause has been already once before this court upoií appeal ( 44 Iowa, 249 ). The facts of the case are fully stated in the decision upon the former appeal and need not be repeated. The judgment of the court below was reversed. It was held by this court that plaintiff was entitled • to recover $500 and interest, upon tender of a conveyance of Hie land to defendant. Upon the filing of th% procedendo the *285 plaintiff appeared in tlie court below and filed a motion for judgment in accordance with the procedendo and opinion. The motion came on for hearing, and thereupon the plaintiff, in open court, tendered to the defendant a release or quit-claim deed for the land in question. The defendant appeared and moved the court for leave to file an amendment to the answer: The amendment to the answer was presented with the motion.

1. conveyot'covenant! grantor. It is alleged in the amendment that the land in question is overflowed and of a swampy character; that the swampy character of said land has been duly, legally and regularly proven up, and the title thereto perfected in plaintiffs; that plaintiffs have failed, neglected and refused to convey' said land to defendant, nor have they made a tender of a deed therefor to defendant; that said land, since-the same was conveyed to plaintiffs, has been by them incumbered by judgments, mortgages and unpaid taxes, which judgments and incumbrances are now in full force and liens upon said land.

The motion of plaintiffs for judgment was overruled. The motion of defendant for leave to file the amendment to the answer was sustained, and the amendment was filed. From these rulings plaintiffs appeal.

It was defendant’s right to have a re-conveyance of the land free from any incumbrance or lien created by the acts of the plaintiffs. He was under no obligation to accept a release or quit-claim. The conveyance should contain covenants warranting the title against all acts done by plaintiffs. It was defendant’s right also to have the land free in fact from any judgment against plaintiffs or any mortgage executed by them.

As the plaintiffs originally commenced this suit without making a conveyance of the land, or an offer to convey it, it was defendant’s right to object by a proper pleading to the conveyance when it was tendered.

2. practice: amendment, ITow far the defendant may be allowed to re-try the cause upon the other averments of the amendment to the answer we do not decide. These averments are not sufficiently specific to enable us to determine that question. If there be sufficient newly discovered evidence to warrant the *286 amendment, or if it be true, as claimed in argument, 'that the title is now perfect in plaintiffs by patent from tlio United States, permission to file an amendment to the answer, after the cause has been remanded from this court, setting up such newly discovered evidence or material facts which have transpired since the former trial, is not error. See Adams Co. v. The Burlington & Missouri River Railroad Company, 44 Iowa, 335 .

Affirmed.