Orr v. Moore

Granger, J. — There is some contention as to the competency of the evidence in the record', which we need not notice, as we may disregard what appears to be improperly there, and portions of it must be disregarded. The main contention in the case 'by appellants is as to the conc'lusiveniess of the deed on the question of their right to recover for a 'breach of its covenants; the point being that its terms, being express 422 covenants against incumbrances, cannot be contradicted: or changed 'by pairol evidence, and many authorities are cited, claimed to support such a rule as applicable to this caise. The claims, and citations, however, do not appear to be directed to. the particular issue we have •set out in the statement, and which we think is controlling in the ease, with the facts as we find them to be. That, before the deed was made the parties, understood —in fact, agreed* — that the land should' be taken without any incumbrances that might be against it, by way of assessments, we have no doubt whatever. The acts of the parties for a long time after strongly sustain such a conclusion. What, we wish to be understood' as .saying is this: That the parties well understood that Orr was to pay no incumbrances tbat might be on the land. When the deed was made, there were taxes that were an incumbrance; but defendant© did hot want the deed to show an exception as to the covenants of warranty because it was the purpose to plat the land into lots for sale; and so the deed was to be held by Henderson, who wrote it, till the incumbrances 'should be removed, and then to be delivered. Defendants, paid the taxes, other than special, and claimed the deed; and Henderson, not having thought about special assessments, delivered the deed, when, had he known or thought of them, he would not, for he so says; and he testifies that the agreement was that all liens and incumbrances were to be paid by the parties getting the deed, before it should he delivered. He is somewhat contradicted in this, but the corroborating fact© sustain him.. It was really a deal commencing in-1889, when Orr gave possession of the Band,— to. other parties, it is true; 'but these' defendants succeeded the former purchasers, with slight modifications of the contract; and the conveyance to defendants wais a practical Carrying out of the original agreement to deed, 'at which time, the assessments in question were not liens, After the delivery of 'the deeds, a® 423 the installments of the assessments became due they were paid by defendants, with no complaint. In 1893 Orr died; and bis estate was settled, — ‘being solvent,— Avith no claims because of such a breach, of his covenants being presented. We speak of these facts as sustaining the comclusion that, whlen the deed Avias left with Henderson for delivery AVhen incnmbnanJces should be removed, it whs understood that all incumbrances were included. It may be true that neither puirty at that time thought of these special assessments; but the acts of defendants in making these payments in the Avay they were made supports the comclusion that it was understood that Orr was hot to, pay any incumbrances, and that, even though defendant© innocently represented the incumbrance® as paid, the obtaining of the deed was AAU’ongful, and should estop a 'claim in direct Adulation of the agreement upon Avhich it Avas to be delivered. The intention was that the deed should be taken with the incumbrances paid, so that Orr cou-ld not be liable under the term© of lias, co'vennnts in the deed; that is, that the facts should be made to harmonize with the condition® ais expressed in the deed, and then the deed 'become opera,tive. The most favorable state of facts to appellant® is that the dieed was called for, and accepted, believing the agreement a® to removimlg incumbrances had been complied with; and, if this is true, no, knoAvn rule of law would permit them to take advantage of such a delivery to avoid their obligations. We do not overlook the fact that there is some testimony to shoAV that before Orr died his attention was called to' the matter, and he acknowledged his liability for assessments, but such a fact does not appear by competent proof. The judgment is affirmed.