EGGERS v. MITCHEM, 240 Iowa 1199 (1949)

38 N.W.2d 591

HUGH EGGERS, Appellee, v. JAMES L. MITCHEM et ux., Appellants; M.J. DOLAN et al., cross-defendants, Appellees.

No. 47481.Supreme Court of Iowa.
August 5, 1949. Rehearing Denied September 23, 1949.

COVENANTS: Eviction — actual or constructive necessary to
1 constitute breach. While an eviction is necessary to constitute a breach of warranty of title or for quiet enjoyment, there need not be an actual expulsion of the grantee, a constructive eviction being sufficient.

COVENANTS: Breach — constructive eviction — what constitutes.
2 Cases of constructive eviction presuppose that the acts of disturbance are caused by person in whose favor there is the lawful or paramount title which may defeat the estate granted, the paramount title being one which prevails in an action or is successfully asserted.

COVENANTS: Unfounded claim not a breach. A covenant of warranty 3 is not violated by the existence of an outstanding, but unfounded, claim upon property.

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COVENANTS: Breach — liability of grantor for grantee’s expense
4 in defending title. The liability of a grantor on a covenant of warranty for expense of grantee in defending a suit involving a boundary line dispute depends not on whether expense has been incurred by grantee but whether there has been a breach of the covenant.

COVENANTS: Grantee not allowed recovery for expense in
5 successfully defending against unfounded claim. Grantee of real estate who successfully defends the title to the realty conveyed in an action in which the claim to the realty was entirely unfounded cannot recover from his grantor the expense of defending the suit, the constructive eviction of grantee not being predicated upon a legal or paramount title.

Appeal from Warren District Court. — EARL W. VINCENT, Judge.

Suit upon covenants of warranty of title for the recovery of attorney fees incurred in defending an action over the establishment of a boundary line. The trial court dismissed the petition and defendants. Mitchem, cross-petitioners, appeal. — Affirmed.

Dickinson Dickinson, of Des Moines, for appellants.

Holliday Myers, of Des Moines, for M.J. Dolan and Frances B. Dolan, cross-defendants, appellees.

Wisdom Wisdom, of Des Moines, for Margaret F. Wilson and Bert E. Wilson, cross-defendants, appellees.

George F. Brooks, of Des Moines, for plaintiff.

HAYS, C.J.

This is an action to recover the expense of attorney fees incurred in a suit brought by an adjoining landowner to establish a boundary line by acquiescence, under chapter 650, Code of 1946. In that action the petition was dismissed by the trial court and affirmed on appeal. Eggers v. Mitchem, 239 Iowa 1211, 34 N.W.2d 603. This suit is based upon an alleged breach of covenants of warranty of title and the defendants

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are predecessors of title. The trial court dismissed the petition of cross-petitioners and they appeal.

Appellants took title to the real estate in question in 1945 from appellee Wilson. Wilson took title from appellee Dolan the same year. Both conveyances were by warranty deed and each contained the following covenants: “And we hereby covenant with the said [grantees] that we hold said premises by good and perfect title; that we have good right and lawful authority to sell and convey the same; that they are free and clear from all liens and encumbrances whatsoever. And we covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever.”

Appellants’ real estate adjoined that owned by Eggers, plaintiff in the original suit. For many years prior to and at the time of the conveyances in question the fence between the two farms followed a small creek that crossed the boundary line, thus adding two acres to the Eggers farm. The government survey line was well-defined and known to all parties, and in 1947 appellants erected their fence upon the survey line, thereby restoring the two acres. Eggers brought suit against appellants, claiming the true boundary to be along the creek, as fenced for many years, with the result above stated.

The sole question involved on this appeal is: Does the above mentioned litigation constitute a breach of the covenant of warranty such as to entitle a recovery of costs and attorney fees, being expenses incurred by appellants in defending the suit?

[1-3] The law appears to be well settled on this question. It is generally recognized that an eviction is necessary to constitute a breach of warranty of title or for quiet enjoyment. Rawle on Covenants for Title, Fifth Ed., section 96; 14 Am. Jur., Covenants, Conditions and Restrictions, sections 69, 90; McNair v. Sockriter, 199 Iowa 1176, 201 N.W. 102. But there need not be an actual expulsion of the grantee. A constructive eviction is sufficient. Funk v. Cresswell, 5 (Clarke) Iowa 62; Eversole v. Early, 80 Iowa 601, 44 N.W. 897; 21 C.J.S., Covenants, sections 96, 108, 112; 14 Am. Jur., Covenants, Conditions and Restrictions, section 72. It is also well-established that in cases of a constructive eviction, all presuppose that the acts of

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disturbance are caused by persons in whose favor there is th lawful or paramount title which may defeat the estate granted. Pope v. Coe, 208 Iowa 759, 225 N.W. 939; 21 C.J.S., Covenants, section 111; annotation 172 A.L.R. 26, 27. A paramount title is one which prevails in an action or is successfully asserted. Thus a covenant of warranty is not violated by the existence of an outstanding, but unfounded, claim upon the property. Peters v. Bowman, 98 U.S. 56, 25 L. Ed. 91; Thorne v. Clark, 112 Iowa 548, 84 N.W. 701, 84 Am. St. Rep. 356; Smith v. Keeley, 146 Iowa 660, 125 N.W. 669; annotation 105 A.L.R. 729.

[4] Appellants in their brief and argument fail to recognize the full import of the requirement that the eviction must be under a paramount title. They contend that the expense incurred in defending the suit is just as real, though won, as it would be if it had been lost. Conceding this to be true, nevertheless the liability of the appellees, covenantors, depends, not on whether expense has been incurred but whether there has been a breach of the covenant. [5] The burden of proof rests upon the appellants to show such a breach, that is, an eviction, real or constructive, based upon a paramount title. Frankel v. Blank, 205 Iowa 1, 213 N.W. 597. The record shows a constructive eviction but fails to show the same to be predicated upon a legal or paramount title. In fact it clearly shows that the Eggers claim was entirely unfounded and not within the purview of the covenants sued upon in this case.

There being no error, the judgment of the trial court is affirmed. — Affirmed.

All JUSTICES concur except MANTZ, J., not sitting.

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