
    Wilson v. Irish.
    1. Contract for Land: rescission after possession taken. The grantee of real estate under a contract, after he has taken possession, cannot have the contract rescinded because his grantor has fraudulently, and in violation of the contract, kept him out of possession for a time. He will be remitted to his action at law for his damages for the detention.
    2. Evidence: breach of warranty: declarations of person in possession. In an action for a breach of warranty in the conveyence or real estate, the declarations of the person in possession, as to the right by which he holds possession, are admissible in evidence as a part of the res gestae.
    
    8. -: handwriting-: standard of comparison. Where the evidence of the genuineness of a letter was meager .and unsatisfactory, it was error to admit it in evidence as a standard of comparison whereby the jury should determine the genuineness of another letter alleged to have been written by the same person.
    4. -: CONVERSATION IN PRESENCE OF ANOTHER: QUESTION FOR jury. Where a conversation occurred in the presence of a party, it was not for the witness or the court, but for the jury, to determine from all the circumstances whether the party heard the conversation or not.
    5. -: CONVERSATION BETWEEN PARTIES: QUESTION FOR JURY. Where a remark made by defendant to plaintiff was material, if made before the delivery of a deed, but the evidence was -conflicting as to whether it was made before or after, the evidence concerning the remark should all have gone to the jury, and it was for the jury to determine whether it was made before or after the delivery.
    6.-: breach of warranty: burden of proof. In an action for a breach of warranty in a conveyence of land, where the breach complained of was a prior conveyance- to another, the burden of proof to establish such prior conveyance was upon the plaintiff.
    7. Conveyance: quit-claim deed : what is not,. A conveyance which employs the words — “have bargained, sold and quit-claimed, and by these presents do bargain, sell and quit-claim ***** all our right, title and interest, estate claim and demand, both at law and in equity, and as well in possession as in expectancy, ” is not a mere quitclaim deed. See Sibley v. Bullís, 40 Iowa., 429.
    8. Damages: breach of covenant of warranty. In an action for a breach of covenant of warranty, the mere fact that there is an outstanding superior title, which has never been hostilely asserted, will not authorize the recovery of the consideration money.
    
      
      Appeal from Van Burén Circuit Court.
    
    Friday, December 7.
    Tiib plaintiff brings tbis action for tbe recovery of damages for an alleged breach of warranty in a conveyence of certain real estate, situated in tbe state of Missouri. The defendant, by way of cross petition, alleges that tbe land described in tbe petition was traded to plaintiff in part consideration for some land conveyed to tbe defendant by plaintiff, and that tbe plaintiff fraudulently extended tbe time of a lease upon said premises, whereby the defendant was kept out of tbe possession of tbe premises for one year, to bis great damage. Defendant prays that tbe trade may be rescinded and canceled. Tbe defendant thereupon moved to transfer the cause to tbe equity docket, for tbe reason that it involves equitable issues. The motion was overruled. Tbe pl&intiff filed a demurrer to tbe cross-petition, which was sustained. Tbe trial was to a jury, and resulted in a verdict and judgment for plaintiff for $1,722.46. Tbe defendant appeals. Tbe cause was before us on a former appeal. See 57 Iowa, 184.
    
      Stiles <& Beaman and Wright, Cummins dk Wright, for appellant.
    
      Bobert H.. Starr and Wm. M. Walker and C. C. Cole, for appellee.
   Day, Ch. J.

I. Tbe first error insisted ujion is tbe sustaining of tbe demurrer to tbe cross petition, asking a rescission of tbe trade. Tbe trade between tbe parties was made on tbe 27th day of March, - ^ 187 5. In August, 1874, Wilson leased to Brown, for tbe period of one year from tbe 1st of. March, 1875, tbe premises by Wilson conveyed to tbe defendant. Tbis lease contains tbe following reservation: “Wilson reserves tbe privilege of selling tbe farm and giving possession at any time after one yea/r.” The defendant alleges in Ms cross-petition that, when the lease was exhibited to him, pending the negotiation, the italicised words were not in the lease, and that they were fraudulently added after the terms of the trade were agreed upon, and before the execution and delivery of the deeds, and that by reason of this fraud the defendant was kept out of possession for one year. This action was commenced in February, 1877, and this cross-petition was filed September 27th, 1877; so that, as appears from the cross-petition, the defendant had been in possession for eighteen months when the cross-petition was filed. The defendant, having taken and held possession of the property, cannot rescind the trade because he was kept out of possession for a time, but will be remitted to his action at law for damages. The demurrer to the cross-petition was properly sustained.

II. The plaintiff testified that about the middle of April, after he received his deed for the Missouri land, he went to the land to see it, and found one John Finch living on ’ ° it and plowing it. Against the objection of defendant, the plaintiff was permitted to testify apinoh said that he was in possession from W. S. Gatling; that he got possession from Gatling. This action is assigned as error. The evidence is, we think, admissible, under the principles announced in 1 Greenleaf on Evidence, § § 108-9.

III. The plaintiff testified that he received two or three letters from Finch. He was then shown a letter as follows:

“GeeeNtop, Souyleb Co., Mo., June 12, 1876.
“Mb. WilsoN: Tours of the 6th is at hand. You wanted to know if I consider Mr. Gatling the owner of the farm. I do consider him the owner of it. - I still hold the rent money till it is settled. Yours truly,
“JohN FiNCH.”

The witness testified: “I don’t think I ever saw Finch write, nor any letter that I knew be wrote. I can say tliat I that is bis bandwriting.” The witness was ^en asked bo w many letters in all be liad received from and answered: “I guess two or three.” The witness was then shown the following letter:

“GeeeNtop, December 27th, ’75.
“Me. Wiesost: — -
11 Sir: Time is drawing near to settle the rent of the Irish farm. If you have any objection of me settling with Mr. Gatling please let me know. In baste.
“JohN FiNch, Greentop, Mo.”

The witness testified as follows: “I got this letter through the mail. ® * I think I was there’the February following its receipt.”

Q. — State whether this letter had anything to do with your going down there?
A. — I think I complied with his request.
Q. — When you was down in Missouri, did you have any conversation with him about having written to you about this matter?
A. — I presume I did.
Q. — What did he say about it — about having written to you ?
A. — I couldn’t say exactly what he said.
Q. — You recollect that he did say something about having written; what is your best recollection?
A. — My impression is that he did.

Thereupon the plaintiff offered the letters in evidence. The defendant objected. The court held that the letter of date, June 12th, 1876., might be introduced as evidence, and the letter of December 27th, 1875, might be introduced for the purpose of comparing with it the letter of June 12th, to show who wrote it.' This action is assigned as error. It is to be observed that there is no proof whatever of the genuineness of the letter of June 12th, except what arises from a comparison of it with the letter of December 27th. The evidence of the genuineness of the letter of December 27th is very meagre and unsatisfactory. The witness first answers that be thinks be did not see Eincb and talk with him about the letters after they were written. Afterward he says he presumes he had a conversation with Einch about having written him, and that his impression is that Einch said something about it. In regard to the admission of papers for the mere purpose of furnishing the jury a standard of comparison, it is said in 1 Greenleaf on Evidence, § 580, that the modern English decisions are clearly opposed to it, and in section 581 the rule as extracted from American decisions is declared to be: “That such papers can be offered in evidence to the jury only when no collateral issue can be raised concerning them, which is only when the papers are conceded to be genuine, or are such as the other party is estopped to deny, or are papers belonging to the witness, who was himself previously acquainted with the party’s handwriting, and who exhibits them in confirmation and explanation of his own testimony.” It is clear that the letter of December 27th, 1875 does not fall within this rule. We think there was error in the admission of each of the letters in question.

IY. The evidence tends to show that, before the conveyance to the plaintiff, the defendant contracted the land to one Uatling, and executed a deed, which was deposited with one Moore as an escrow. The defendant to a transaction which occurred afterward at the office of Moore, in which he claims that this contract was rescinded, and the deed was surrendered to him. Moore was introduced as a witness. Ilis attention was directed to this occurrence, and he was asked: “What was said there at the time about the trade being rescinded?” To this he answered: “There was a remark made by Irish — Gatling was in the room; I can’t tell whether he heard the remark or not. My impression at the time was that he did not. He was about as far as from me to the counsel there. There was nothing occurring to prevent his hearing. My reason for thinking he did not was, that Irish spoke in a suppressed tone, between a whisper and a loud tone.” The witness was then ashed to state what was said, and, upon plaintiff’s objection, the witness was not permitted to answer. In this ruling we think there was error. The defendant had the right to be'corroborated by a person present at the transaction about which he had testified. It was not for the witness nor the court, but for the jury, to determine from all the circumstances whether G-atling heard what occurred in his presence.

Y. Rutledge Lea, who drew the papers between the plaintiff and the defendant pertaining to their trade, w;as introduced as a witness for defendant, and testified that he heard a conversation between "Wilson and Irish about the Missouri land about the time the deeds were made, during the time they were making the trade, and that Irish said that the Missouri land was not worth more than $500. ITpon cross-examination the witness said: “I think Irish said the land wasn’t worth over $500 after the deeds were delivered. The deeds were right on the table. I can’t say there had been a manual delivery of them. They were completed, but I don’t’ know as Wilson had picked them up.” The plaintiff thereupon moved to withdraw from the jury all of the evidence of this witness relating to Irish’s remark about the value of the Missouri land, because the statement was made after the transaction was completed. The court sustained the motion. The defendant, with reference to this same transaction, testified that this statement was made by him when they were discussing the amount of consideration to be put in the deed. This evidence should have been allowed to go to the jury, and it should have been left for them to determine whether or not the statement was made before the transaction was completed. Even if made immediately after the deeds were delivered, the remark would be admissible as part of the res gestae. And, if Wilson made no reply, or manifested no surprise, it would tend to corroborate the testimony of Irish, that he “told Wilson several times that the Missouri land was not worth to exceed $500.

YI. During tbe trial of tbe cause, a question arose as to tbe burden of proof, and tbe court held that, if plaintiff never took possession of tbe premises and defendant never placed bim in possession, then tbe burden was on defendant. Tbe same doctrine was announced in instructions. Tbe petition is somewhat indefinite. It does not clearly appear whether tbe plaintiff seeks to recover at all uj>on tbe ground that tbe defendant never bad title to tbe land. Tbe petition, however, does allege*as a specific ground of complaint that, when tbe plaintiff attempted to take possession of tbe Missouri land, be found one Gatling in possession under a purchase from defendant prior to plaintiff’s purchase.

So far as this particular breach is concerned, it admits by-implication that tbe title was at one time in defendant, and claims that it was divested by sale to Gatling. Tbe answer simply denies tbe allegations of tbe petition. Under tbe pleadings in this case, we think tbe burden of proof is upon plaintiff, in so far as tbe alleged conveyance to Gatling is concerned. See Jerald v. Elly, 51 Iowa, 321.

YII. Before tbe alleged conveyance from defendant to Gatlin, tbe defendant executed a title bond to one Morgan, which- tbe defendant afterwards foreclosed, thus divesting Morgan’s title. Tbe defendant insists ¿[eeq Gatling was a mere quit-claim, passing, not tbe title to tbe land, but simply the defendant’s interest therein. Tbe deed to Gatling employs the words,“have bargained, sold and quit-claimed, and by these presents-do bargain, sell and quit-claim * * * all our right, title and interest, estates, claim and demand, both at law and in equity, and as well in possession as in expectancy.” This deed is not a mere quit-claim. See Sibley v. Bullis, 40 Iowa, 429.

YIII. Tbe court instructed the jury as follows: “If you find that defendant did not have title to tbe Missouri land at tbe ^me he conveyed tbe same to plaintiff, then you will find for plaintiff on bis cause of action, and will assess his damages at' tbe purchase price of said land, with six per cent, interest thereon.” This instruction entirely ignores the defendant’s claim, that the plaintiff took possession of the property and rented it to Finch. The mere fact that there was an outstanding superior title, which had never been hostilely asserted, would not authorize the recovery of the consideration money. 3 Washburn on Real Prop., 478.

Many other objections have been urged to the judgment, but we think what has been already said indicates our general view of the case, and may render the other questions immaterial upon the retrial. Eor the reasons assigned, the judgment is

Reversed.  