#### J. T. Anderson, Appellant, v. D. C. Kyle, et al., Appellees.

Homesteads: sale on execution: previously contracted debts. A debt for which a homestead may be sold on execution under Code, section 2976, is one which has become a fixed obligation, subject to enforcement prior to the acquisition of the homestead. The evidence in this case fails to show an antecedent debt such as is contemplated by the statute.

*Appeal from Washington District*Gourt.— Hon. Byron W. Preston, Judge.

Wednesday, February 15, 1905.

Action in equity *to*subject certain real estate to the payment of a judgment rendered in favor of plaintiff and against the defendant D. C. Kyle and his wife, Joanna Kyle, 'the latter now deceased. Upon the trial the petition of plaintiff was dismissed, and there was judgment in favor of defendants for costs. Plaintiff *appeals.-*—

■Affirmed.

*Schuyler W. Livingston,*for appellant.

*S. W. & J. L. Broolchart,*for appellees.

Bishop, J.—

Tn March5 1890, the defendant D. C. Kyle and his wife Joanna Kyle, vsold to plaintiff a certain tract or parcel of land situated in the city of Washington, this State, and conveyed the same by warranty deed. Shortly thereafter plaintiff sold said land to one J. S. Adams, and conveyed to him by warranty deed. In the year 1896, the *667children of D. C. Kyle brought suit against said Adams for partition of said lands, claiming to be the owners by inheritance of an undivided eight-ninths part thereof. As a result of such action, and by reason of proof of title in said partition claimants, plaintiff was compelled to, and did in October, 1896, pay to said Adams fhe sum of $520. Thereupon D. 0. Kyle and Joanna Kyle confessed judgment in favor of plaintiff for said sum of $520, and such confession was properly made a matter of record. It appears that in March, 1895, defendant D. C. Kyle purchased the certain real estate which is now sought to be reached in this action by execution issued upon said judgment, and took title thereto in his own name. In March, Í896, he conveyed the same to his wife, and the latter died intestate, in January, 1900. At the time ,the property thus in question was purchased, the defendant D. C. Kyle, with his wife, and the other defendants, their children, went into occupancy thereof as a homestead, and it has bpen so claimed and occupied ever since.

The sole question in the case is whether the debt which was merged into the judgment by confession was one contracted prior to the acquisition of such homestead, and hence, in virtue of section 2976 of the Code, enforcement of the judgment may be had by sale of the property under execution. This question the court below answered in the negative, and, we think, correctly so. It is not claimed that any fraud entered into the sale and conveyance to plaintiff in 1890. The defendant D. O. Kyle and his wife acted upon the belief that they were possessed of title to the lands conveyed. So, too, the facts respecting the acquisition of the title to the property now claimed as a homestead involve no element of bad faith. We need not consider, therefore, what might have been the effect upon the situation had fraud been tendered as an issue and proved upon trial. Now, as, Kyle and his wife were not in fact possessed of an indefeasible title to the lands conveyed to plaintiff, it may be conceded that a breach of the covenants in the deed occurred when de*668livery thereof was made. But plaintiff was given possession of the property at the time, and by the well-settled rule in this State the breach was to be .regarded as a technical one only. He could not sue for or recover substantial damages until some positive injury had been suffered by him. *Foshay v.*Shafer, 116 Iowa, 302, and cases cited. The cases proceed upon the thought that no injury substantial in character can be said to have been sustained until the grantee has been evicted, or has been called upon to protect himself by making purchase of the outstanding paramount title. And not only this, but it would be manifestly unjust to permit a grantor to be charged in damages as of the value of the lands in advance of the establishment of an adverse and paramount right in a third person, especially as such might never be attempted. Accordingly it is said that the covenants of a deed are not breached so as to give rise to any obligation substantial in character, on the part of the grantee, until he has been compelled to give way in the face of the paramount title. *McClure v.*Dee, 115 Iowa, 546.

That a remote or contingent liability attaches to the execution and delivery of a deed in view .of a possible failure of title is very true. But, as we have seen, the promise to repay or reimburse which arises out of a deed covenant has relation to the time when, if ever, such covenant shall be broken by eviction or otherwise. Such is quite a different thing from a specific debt contracted and agreed to be paid. And it is a debt contracted — that is, a fixed obligation, subject to enforcement by the processes of the law — that the statute authorizes to be satisfied by execution sale of a homestead. Our attention is called to the case of *Benge’s Adm’r v. Bowling,*21 Ky. Law 165 (51 S. W. Rep. 151), where a contrary conclusion seems to have been reached. An examination of the opinion discloses that the holding was made to depend upon the express provisions of the Kentucky statute, which includes all forms of liability as well as contract debts. As in this case no debt enforceable in law or in equity arose in *669favor of plaintiff as against defendant D. C. Kyle until after be (plaintiff) bad been called upon to reimburse bis grantee, Adams, in tbe amount necessary to buy in tbe outstanding title, and, as tbis did not occur until long after tbe acquisition of tbe homestead in question, it becomes apparent that tbe court below rightly refuséd tbe relief demanded.— *Affirmed.*