Nelson v. Tracy

Ladd, J. 1. Vendor and purchaser: injury to property. In September, 1916, the parties hereto entered into a written contract, by the terms of which defendant undertook to sell to the plaintiff 80 acres of land, for $14,500, $1,000 to be paid down,- — which was done, — and the remainder “as soon as first party executes and delivers to second party a proper deed of conveyance” and an abstract showing good title of record in the vendor. Time was made of the essence of the contract. In pursuance of this contract, a deed conveying the property to the plaintiff was executed, October 2, 1916. At that time, one Gray was in possession as tenant under the defendant, his lease expiring March 1st following, which fact was known to plaintiff. On February 23, 1917, the barn on the premises was destroyed by fire. The petition alleges that its value was $1,600, and that the value of the land was diminished in that amount, and seeks recovery therefor, alleging that, at the beginning of negotiations, defendant had stated that the land was under lease to one Gray, until March 1, 1917, and that he could not give possession until that time; that a portion of the terms of sale was oral, and was that possession of the premises was to be retained until March 1, 1917; and that the contract was partly in writing and partly, oral. [1120] It may be conceded, without deciding, that, had defendant retained possession until the first of March, 1917, he would have been liable for the diminution in value. See Davidson v. Hawkeye Ins. Co., 71 Iowa 532; Bowdle v. Jencks, 18 S. D. 80 (99 N. W. 98); Smith v. Phoenix Ins. Co., 91 Cal. 323 (13 L. R. A. 475, 25 Am. St. 191). 2. Evidence: preliminary negotiations. On the trial, testimony tending to show what was said during negotiations, previous to entering into any agreement with respect to the sale of the land, was tendered; but this was rightly excluded, on the ground that all such talk was merged into -¿he written agreement. Evidence tending to show a parol reservation of possession was tendered and received, subject to the objection that it tended to vary the terms of a written instrument; and subsequently, the objection was sustained, and a verdict returned for the defendant. 3. Landlord and tenant: implied assignment of lease. That Gray was in possession under a lease terminating March 1, 1917, was undisputed; and, as plaintiff had knowledge of this, he could not have ousted him before that time. Yule v. Fell, 123 Iowa 662. In the absence of reservation, the conveyance of the land to plaintiff by the defendant carried with it an assignment of the lease by defendant to Gray, and all rights defendant had under same, and vested them in plaintiff, who thereafter was entitled to assert them as fully as defendant might have done. Hatfield v. Lockwood, 18 Iowa 296; and cases cited in Iowa Railroad Land Co. v. Boyle, 154 Iowa 249, and Hall v. Hall, 150 Iowa 277. In the last-named case, testimony tending to establish a parol reservation of possession was received without objection. In the case at bar, the evidence, were it to be adjudged admissible, failed to establish such reservation. It appears that one McLeish acted as defendant’s agent, and plaintiff testified that, with McLeish, he went to Mr. Tobin’s office, [1121] and that the latter said he could get a loan on the farm in 80 days, to which the witness responded that he did not want it till the first of March, when he got possession; that Tobin replied that he could not promise him the money the first of March; that McLeish said Gray had possession until March first, and if he “wanted to go ahead, build up, fix up the house, he presumed he (plaintiff) could buy Gray off;” and that to this he replied that he would not buy him off. Manifestly, this did not establish the existence of a reservation of possession in defendant. It no more than' indicated an understanding that Gray had the right to retain possession under the lease, and was not inconsistent with the thought that an assignment thereof would be effected by the conveyance of the land, in pursuance of the written contract. The offer to prove like matters does not obviate this conclusion. Having reached this conclusion, it is unnecessary to determine whether evidence of a parol reservation of possession is admissible, where a warranty deed in usual form has been executed. There was no error in directing a verdict for defendant. — Affirmed. Preston, C. J., Evans and Salinger, JJ., concur.