Eversole v. Early

Given, J. — I. Plaintiff asks to recover upon the ground that the fee-simple title of Barke and his grantees was paramount to the title which he had received from Early, to protect himself and his grantee against which, he was compelled to purchase said paramount title, to his damage, which he asks to recover [604] under defendants’ covenants of warranty to him. If the third count states as facts that which shows that the Barke title was not paramount to the tax title of Early, then it states facts constituting a defense. According to said count, Barke’s title was not complete. It depended upon his paying the $968.50 within a certain time, a failure to do which would defeat his title, and render the tax title paramount. The demurrer should have been overruled. It is contended that this ruling is without prejudice, as,-under the issues joined by the other counts, plaintiff; had to prove that the title bought in by him was paramount. This is true, but the defendants pleaded facts that would show upon what the question of superiority of title rested. Without this count, there was nothing in the pleading to even suggest the real point in controversy. II. The point in controversy was as to which of these titles was paramount at the commencement of this action. If the Barke title was paramount, we have no doubt as to plaintiff’s right to protect himself by purchasing it. The old rule, that there was no eviction until actual ouster, does not prevail. It is sufficient that the holder of the paramount title is able to assert it successfully. Thomas v. Stickle, 32 Iowa, 71; Funk v. Cresswell, 5 Iowa, 62. There is no conflict in the evidence, and the only "fact appearing therefrom, in Addition to that shown by the pleadings, is that, the case of Barke v. Early et al. being appealed, a stipulation was entered into by which the time for the payment of the $968.50, and for filing a petition for improvements, was extended to a later date than that named in the decree, being a date later than that on which Barke conveyed to Mason and Thompson, and they to the plaintiff. The decree in Barke v. Early et al. explicitly provides that, in case plaintiff fails to pay the $968.50, “the title to said land shall be quieted in defendants.” During the time allowed for the payment, it could not be said that either title was paramount, as that depended upon the [605] payment or failure to pay. It was during this time that Barke conveyed to Mason and Thompson, and they to the plaintiff. Hence it is not true that the plaintiff purchased a paramount title. Appellee contends that, as the patent title could have been perfected and enforced at the time plaintiff purchased it, it was the paramount title. In Thomas v. Stickle, supra, the court says: “Could the grantors of Pitcher have successfully maintained an action against the plaintiff for the recovery of the land in dispute at the time Pitcher purchased in their titles ? ” Adapting the inquiry to this case, we ask, was Barke, or Mason and Thomas, entitled to a writ of possession under the decree in Barke v. Early et al. at the time plaintiff purchased in their title ? Clearly not, without first paying the $968.50. Without this payment, they were not in position to assert the patent title successfully. Our conclusion is that the court erred in sustaining the demurrer, and in rendering judgment for the plaintiff, and that judgment should be for the defendants for costs. This view of the case renders it unnecessary to notice the, other questions presented. Reversed.