
    John Rollins, appellant, v. Edwin Hopkins et al., appellees.
    Filed October 18, 1919.
    No. 20475.
    Mortgages: Foreclosure: Counterclaim. In giving the warranty deed in question, without any reservation, the plaintiff created a charge, or duty, on himself by his own contract’ which he is bound to make good in a court of equity.
    Appeal from the district court for Knox county: William Y. Allen, Judge,
    
      Affirmed.
    
    
      W. A. Meserve and T. N. Treat, for appellant.
    
      F. M. Scoblic and E. A. Houston, oontra.
    
   Aldeich, J.

This is an action' in equity in the district court for Knox county to foreclose a mortgage of $475. The appellee herein appears as defendant in the foreclosure, and it is admitted that, the owner of the fee bought the same free of incumbrance. The appellee admitted his liability on the note and mortgage sued upon. Plaintiff represented to the defendant, that no public road existed over the land in controversy, of any character, and defendant claimed that the land at that time was charged with a public highway running diagonally from a northeasterly to southwesterly direction and that it was generally used by the public. Plaintiff afterward denied that such a road was ever formed or was running in the direction claimed by the defendant.

The record discloses that this road was abandoned, or vacated, some time in the year 1900; but again in 1909 a petition was filed for the re-establishing or reopening of this road in controversy across the promises, and while it is true that some irregularities existed, as appears of record, yet the road was re-established, and the petition granted, and it has been used ever since by tbe public as a public road running diagonally across tbe quarter section involved. Tbe mortgage of $475 was given as a part of tbe purchase price of tbe land..

The plaintiff gave a warranty deed at tbe time tbe mortgage was given, but did not in any way make tbe warranty subject to any incumbrance whatever; it being a straight warranty deed with no reservations whatever. The defendant claims as damages tbe sum of $475 by reason of tbe road running across tbe premises, and the trial judge awarded $310.20 on this counterclaim as damages to defendant. It is from this finding that plaintiff appeals. Tbe issue presented for decision is: Was it proper, just, and legal to allow this counterclaim in tbe sum of $310.20?

It appears of record that on April 18, 1913, plaintiff and defendant entered into a contract whereby, in consideration of the purchase, tbe plaintiff guaranteed and expressly provided in tbe contract that tbe road was to be along tbe “east' and south line of said described quarter section.” Then it was tbe intention of tbe parties, at tbe time of tbe contract, sale and conveyance of the land, that there was no road running along from a northeasterly to a southwesterly direction diagonally across tbe quarter section involved, and it also appears of record that after tbe transfer bad been made, and tbe mortgage given, and tbe deed turned over to tbe defendant, there was a regularly traveled and established highway running in tbe direction as mentioned. Then it was that defendant made bis complaint to tbe plaintiff, who requested tbe defendant to pass a petition around for tbe purpose of causing tbe road to be vacated and changed along tbe section lines. This tbe defendant tried to do, but failed. Tbe record shows that on April 12, 1909, tbe petition before the supervisors to re-establish and allow this road was filed, and tbe road was established from northeast to southwest, tbe same as it bad been in 1900, and bad been used at all times for many years. Plaintiff claims that, because no damages were paid, the road is not a public highway, but the right, if any, to recover for the actual taking by the public before it was sold to defendant belongs to plaintiff. Besides, in equity, he is not entitled to treat his guaranty as a nullity, and defendant is entitled to counterclaim upon it.

The record and evidence show conclusively that the road was not where it was guaranteed to be. The defendant declared in the beginning of the negotiations that, if the road ran diagonally he did not want the land. The guaranty and other inducements of plaintiff satisfied defendant; now he is called upon to make his representations and guaranty good.

The trial court in allowing a foreclosure of the mortgage involved, and in allowing the counterclaim of $310.20, had ample evidence to sustain his position, and the same is just and equitable, and therefore

Affirmed.

Sedgwick, J., concurs in the conclusion.

Dean, J., not sitting.  