
    D. E. Thomas, Appellee, v. Anthony Becker et al., Appellants.
    EVIDENCE: Secondary — Copy of Patent. Certified copies of govern-1 ment patents are admissible on a showing that the original may not be had. (See. 4633, Code, 1897.)
    COVENANTS: Action for Breach — Identity of Names. Record re-2 viewed, an<| held to show that the grantor in one deed was the identical person named as grantee in a formerly issued patent.
    COVENANTS: Action for Breach — Decree to Which Defendant Is Not 3 a Party. In an action by grantee for breach of covenant of seizin, a foreign decree quieting title against plaintiff is admissible against defendant for the purpose of showing that plaintiff has been legally ousted from the premises, even though defendant was not a party to the action in which the decree was rendered, and even though defendant had not been vouched into the action by notice from plaintiff to defend.
    ASSIGNMENTS: Assignment Prior to Action. Record held to show 4 that an assignment of a cause of action was made prior to the commencement of action thereon.
    JUDGMENT: Parties — Evidentiary Force of Judgment. A foreign de5 cree quieting title in the plaintiff therein is not prima-faeie evidence of paramount title in such plaintiff against one who was neither a party to the action nor vouched therein by notice to defend.
    COVENANTS: Pleading — Assumption of Burden of Proof. Plaintiff in 6 an action for breach of covenant of seizin, who pleads that, when he received the conveyance from defendant, paramount title to the land was in a third party, and is met by a general denial, must prove the voluntarily assumed issue.
    COVENANTS: Action for Breach — Measure of Damages. In an action 7 against a remote grantor for breach of his covenant of seizin, the measure of damages is the recited consideration in defendant’s deed to Ms grantee, with interest thereon from the date the property was conveyed to plaintiff.
    
    
      Appeal from Polk District Court. — Lawrence DeGraee, Judge.
    December 14, 1920.
    Action on breach of covenant of warranty in a deed of conveyance of land by defendants to plaintiff’s remote grantor. Judgment for plaintiff. Defendants appeal. —
    Affirmed.
    
      A. L. Hager, for appellants.
    
      B. & F. G. Byan, for appellee.
   Arthur, J.

— Plaintiff instituted this action against defendants, except Mayer Bros. Company, to recover for breach of covenants of warranty of a deed made by defendants to Z. W. Thomas, a prior grantor to plaintiff and plaintiff’s assignee, covering the northeast quarter of the southeast quarter of Section 8, and the southwest quarter of the northwest quarter of Section 9, Township 146, Range 41 West of the 5th P. M., Mahnomen County, Minnesota. The covenants of warranty in the deed are:

“That they are well seized in fee of the land and premises aforesaid, and have a good right to sell and convey the same in the manner and form aforesaid.”

The above-mentioned conveyance was alleged, and is admitted by defendants.

Plaintiff alleges that Z. W. Thomas, grantee in above-mentioned deed, subsequently conveyed the real estate above described to D. E. Thomas, this plaintiff, and one J. C. Walburger; and that said J. C. Walburger has assigned his claim for damages for breach of warranty to this plaintiff. Plaintiff further alleges that, subsequent to the conveyance of said land to plaintiff and Walburger, one Edson S. Gaylord instituted an action in the district court of Mahnomen County, state of Minnesota, for the possession of and to quiet title to said real estate in him as against plaintiff and J. C. Walburger, based upon a conveyance of said real estate to him from Nay gwon. ay be Jekein, a prior grantor. A decree was entered in said court on December 27, 1918, adjudging Edson S. Gaylord to be the owner, and entitled to the immediate possession of said real estate, and quieting title against the defendants in the action, plaintiff and J. C. Walburger.

Defendants admitted that, on December 19, 1910, they executed and delivered to Z. W. Thomas a warranty deed to the real estate above described, and denied the other allegations made by plaintiff.

On trial, plaintiff introduced in evidence muniments of title of the above-described real estate from the government down to and into Edson S. Gaylord: namely, a copy of a trust patent from the United States of America to Nay gwon ay be Jekein, and deed of conveyance from Nay gwon ay be Jekein to Edson S. Gaylord. He also offered in evidence a duly certified copy of the pleadings and record of proceedings, judgment and final decree of the Minnesota court, adjudging ownership of said land to be in Gaylord, and quieting the title against the plaintiff and "Walburger; and also offered in evidence an assignment from Walburger to plaintiff of Walburger’s claim for damages on account of breach of warranty in the deed from Z. W. Thomas to plaintiff and Walburger.

Defendants offered no evidence.

Defendants objected to the introduction of the copy of the trust patent from the government to Nay gwon ay be Jekein, on the ground that no foundation had been laid for secondary evidence. On this point, the record shows that plaintiff sought to obtain the original patent, but was unable to do so, and that the original patent was probably burned. The copy of the patent, which was duly certified, was properly received.

Defendants objected to the introduction of the deed from Nay gwon ay be Jekein to Gaylord, on the ground that it purports to be made by Nay gwon ay be Jekein, but does not purport to in the name of the party named as grantee in the copy of the patent, and further, that it does not purport to be signed by the grantor by his mark, or by any other mark. On that point, the plaintiff introduced a deposition by Nay gwon ay be Jekein wbo testified tbat, on May 9, 1916, be and bis wife executed a deed conveying to Edson S. Gaylord tbe land in controversy, and tbat be executed tbe deed by signing “by thumb mark;” tbat be never deeded tbe land by any other deed than tbe deed of May 9, 1916, and never deeded to anyone except Edson S. Gaylord; and tbat such deed was tbe only deed be ever made to the land; and tbat be never authorized anyone to make a deed for him to tbe land; and tbat be is tbe same person wbo is grantee in tbe patent, and grantor in tbe deed to Gaylord.

Tbe deed is signed by thumb mark.

Tbe testimony of Nay gwon ay be Jekein, with tbe deed itself, certainly made tbe deed competent evidence of tbe conveyance of tbe land. Whether tbe grantor in tbe deed to Gay-lord was tbe same person as tbe grantee in tbe patent was a question of fact.

Defendants objected to tbe introduction of tbe transcript of pleadings and proceedings in tbe Minnesota court and tbe decree entered, for tbe reason tbat tbe same are incompetent, irrelevant, and immaterial, and not binding upon tbe defendants for any purpose, defendants not - - fraying been made parties to tbe Minnesota ac- ° x tion, and for the further reason tbat defendants were not vouched into the Minnesota action by notice- to defend. It appears tbat defendants were not made parties to tbe Minnesota action, and tbat they were not notified to defend. Tbe court, in ruling, said:

‘ ‘ Tbe court admits tbe decree for one purpose only, and tbat is to show tbe fact of eviction of plamtiff from tbe land in controversy, and tbat by said decree tbe right, title, and interest was quieted in tbe plaintiff Gaylord as against tbe plaintiff in this case.”

Unquestionably, tbe ruling of tbe court was correct in admitting tbe decree of tbe Minnesota court for tbe purpose of showing ouster of the plaintiff and Walburger. Tbe ruling was as favorable to defendants as they were entitled to. Tbe decree was at least competent to show eviction.

Tbe term “eviction,” as used by tbe court in bis ruling, we take it, means dispossession or ouster. Tbe term is often misleading. It is borrowed from the feudal law, and is often misleading, when adopted into our modern system of actions. In its original and technical meaning, it signified the expulsion of a tenant by the assertion of a paramount title, and by process of law. Nesson v. Adams, 212 Mass. 429 (99 N. E. 93). As used at the present time, the word is extremely difficult to define with technical accuracy, since it is used to denote that which formerly it was not intended to express. As used in the instant case, it means the dispossession or ouster of the plaintiff and his assignor from the land in controversy, and does not carry with it the meaning that it is proof of the fact that the dispossession was by the assertion by judicial decision of a paramount title. 21 Corpus Juris 1262. The covenant of seizin is broken whenever there has been an involuntary loss of possession by reason of the hostile assertion of paramount title, whether that title be established by judgment or by other proof. Note to Morse v. Garner, 47 Am. Dec. 565, 571.

The trial court very properly received the decree in evidence for the purpose of showing eviction or dispossession of the plaintiff and his assignor, and left the question of paramount title to be otherwise established, if proven at all.

Defendants objected to the introduction of the assignment from Walburger of his cause of action to the plaintiff, on the ground, as we gather from the record, that the assignment was not made before the suit was begun. The date on the assignment is ‘ ‘ February, 1919, ’ ’ without g-y^ng ¿ay 0£ month. The petition was filed on February 19, 1919. The testimony as to the real date of the assignment is not clear. But Thomas, assignee, as a witness, does say:

“I know it was signed some time, and signed when we were talking of the institution of the proceedings.”

We think the court properly admitted the assignment in evidence.

5 judgment: parties: eviaentiary force of judgment. As before adverted to, the Minnesota decree was admitted for the sole purpose of showing eviction, and the court ruled that admission of the decree in evidence did not preclude defendants from showing paramount title in themselves. Appellants insist that the decree is not competent evidence for any purpose. Courts differ as to the purposes for such a decree is admissible on suits for breach of covenant. But we have found no court holding that such decree was not competent to show the fact of eviction, as the term "eviction” is used in this case.

In Davis v. Smith, 5 Ga. 274, it is held that such a decree—

"Has the force and effect of a domestic judgment. There it would be evidence of eviction, notwithstanding the administrator [or covenantor] did not appear and defend; it is the stronger evidence of a breach, on that account. Here it is evidence of the same fact.”

Some courts hold that such a decree is prima-faeie evidence, in an action against the covenantor for a breach of his covenant, of a paramount title in another. Mason v. Kellogg, 38 Mich. 132. In this case, the court said:

"The judgment is a piece of lawful evidence in an action upon the covenant, the difference being that, if it turn out that the covenantor was not adequately warned,' — was not, in substance, a party, — the judgment, instead of being final as against him, is merely prima-faeie evidence of the validity of the title it purports to validate, and is disputable.”

However, we think the weight of authority inclines to the position that the record of an adverse proceeding may be evidence of eviction, but that it is not even prima-faeie evidence that such eviction was under title paramount against one who was not a party or privy to the proceedings. It is held by all authorities that the purchaser may protect himself, when sued under adverse title, by giving notice to the party bound by the covenants, and requiring him to defend in the suit; but it is not necessary to his recovery in the action on the covenants that such notice be given. The difference is that, if the covenantor was made a party in the original action, or properly vouched into the action to defend, then the proceedings and judgment and decree in the case are conclusive as to all .matters wherein the issues in the cases are the same: that is, the finding of paramount title, if it is so found, is conclusive on that question. But if the covenantor is not made a party, or properly notified to defend, a finding of paramount title is not binding upon him, and he may dispute that finding. But the fact of eviction may be shown by the decree. Rawle on Covenants for Title (5th Ed.), Section 123.

Counsel discuss at length, and ably, the question of burden of proof. Appellee contends that the burden is on the defendants to show paramount title in themselves, at the time of their deed to Z. W. Thomas, and appellants insist the burden is on plaintiff to show paramount title in Gaylord. Under the pleadings in this ease, we think the burden was on the plaintiff. Plaintiff alleged, in effect, that the paramount title was in Gaylord, and that the title received from the defendants had failed. Defendants said they had neither knowledge nor information sufficient to form a belief, and therefore denied the allegations of plaintiff, and placed the plaintiff on strict proof. Under this state of pleading, we think the burden was on the plaintiff. If defendants had answered, alleging their chain of title, and that they were seized of the real title to the land, and that the title which they conveyed had not failed, then the burden would have been upon the defendants to show paramount title in them at the time they conveyed the land to plaintiff’s grantor.

Whatever the rule may be as to burden of proof is of little or no importance in this case. It is not necessary to determine that question in this action. The plaintiff assumed the burden of proving the paramount title of the land in controversy in Ed-son S. Gaylord, by alleging specific conveyances constituting a perfect chain of title from the government down to Gaylord. On the trial, the plaintiff assumed the burden, and introduced evidence of patent from the United States of America to Nay gwon ay be Jekein, and from Nay gwon ay be Jekein to Edson S. Gaylord.

The court held the measure of damages to be $800, the recited consideration in defendants’ deed to Z. W. Thomas, plus interest thereon at the rate of 6 per cent from September 10, 1912, the date of conveyance to plaintiff. This jg the correct measure of damages. Shorthill v. Ferguson, 44 Iowa 249; Bellows v. Litchfield, 83 Iowa 36.

Counsel for appellants, throughout his able argument, insists that the Minnesota decree should not have been received in evidence for any purpose; and that, if it had been excluded, the record would be barren of competent evidence to sustain appellee’s case. We think his position not well taken. The proceedings and decree of the Minnesota court were not relied on to establish paramount title to the land in controversy in Gaylord, and the consequent breach of covenant of seizin in deed made by defendants to plaintiff’s remote grantor. As before stated, the decree was only relied on to show eviction, or dispossession. Averment of paramount title in Gaylord was sustained by other evidence.

We have examined the record as to all of the assignments, and find no error in the record. The judgment of the trial court should be and is — Affirmed.

Weaver, C. J., Ladd and Stevens, JJ., concur.  