198 Ky. 304 | Ky. Ct. App. | 1923
Opinion op the Court by
Sustaining motion for tbe appeal and reversing the judgment.
On June 12, 1911, appellant and defendant below, W. H. Burchett, sold and conveyed to appellee and plaintiff below, W. C. Blackburne, a tract of land in Pike county containing about forty acres, and in the deed conveying the title there was a covenant of general warranty. On October 25, 1912, plaintiff herein filed an equity action in the Pike circuit court against Kennis Burchett and the heirs of Cal Clark seeking to enjoin them from trespassing on about seven acres of the forty acres which he had purchased from defendant herein. It is alleged that in addition to a traverse the defendant in that suit interposed a counterclaim on the ground that the Clark heirs owned the John King patent and that the seven acres involved in that suit were a part of that patent and that they were, therefore, the owners of it and on that ground defended their alleged trespasses. On June 25, 1916, the court entered-a judgment in that case and dismissed plaintiff’s petition but entered no judgment as to who was the owner of the seven acres of land involved, except as may be inferentially inferred from the order dismissing the petition. None of the pleadings in that case are made part of the record in this one, and we are unable to say upon what ground or upon the determination of what issue, or character of title, that petition was dismissed. It is alleged, however, in the petition herein that the court found that the Clark heirs were the owners and entitled to the possession of -the seven acres
On July 26, 1918, plaintiff • filed this ordinary action against defendant seeking the-recovery of a judgment for $500.00 damages as a result of 'the breach of the latter’s warranty in his deed to plaintiff of date June 12, 1911. A demurrer was filed to the petition but overruled with exceptions, and the answer, as amended, was a traverse of all the material allegations of the petition, and affirmatively pleaded an estoppel against plaintiff which was denied by an order controverting it. The cause was submitted to the court without a jury and it found in favor of plaintiff against defendant the sum of $207.00, and after motion for a new trial was overruled judgment was rendered for that amount and defendant appeals.
The rule is that the warrantee, under a general warranty contained in a deed, may not maintain an action thereon against Ms warrantor until after eviction by paramount title, unless in exceptional cases which it is not necessary, to mention here, since the facts do not create any of them. It is likewise the firmly settled rule in this jurisdiction that the warrantee in an action against him for eviction may notify Ms warrantor of the pendency of such action and call upon the latter to defend, in which case he will be bound by the judgment rendered therein whether he actually defends or not. If, however, no such notice is given the right of the warrantee to maintain an action against him on the warranty is not destroyed, but in that case the onus is upon him, to prove eviction by a paramount title, whereas if the notice had been given that question would be res adjudicate in Ms favor in the action to recover damages against Ms warrantor. Some of the many cases from this court in which the above doctrine was announced and applied are: Booker v. Bell, 3 Bibb 173; Cox v. Strode, 4 Bibb 4; Gaither v. Brooks, 1 A. K. M. 409; Davenport v. Muir, 3 J. J. M. 310; Woodward v. Allen, 3 Dana 164; Jones v. jones, 87 Ky. 82; Elliott v. Saufley, 89 Ky. 52; Graham v. Dyer, 29 S. W. R. (Ky.) 346, 16 Ky. L. B. 541; Burbank v. Burbank, 8 Ky. Opin. 113; Arnold v. Maiden, 10 Ky. Op. 288; Huff v. Cumberland Valley Land Co., 17 Ky. L. R. 213; Grant v. McArthur, 153 Ky. 356; Walker v. Robinson, 163 Ky. 618;
But it may be insisted that in as much as it is disclosed by the record that defendant in this action had actual notice of the pendency of the case of Blackburne v. Burchett and the Clark heirs in which plaintiff claims the eviction complained of was adjudged (if, indeed, that judgment was one of eviction), and that such notice, howsoever acquired, was sufficient to render that judgment binding on him and authorized the application of the above rule. We, however, can not agree with that contention. It will be observed on an examination of the opinions supra that they proceed upon the theory of an estoppel of the defendant in the suit based upon the breach of warranty by res adjudicata, which is tantamount to saying that the warrantor was a party to that suit by virtue of the required notice to him of its pendency, and it is only upon that ground that the plaintiff is relieved of either alleging or proving his eviction by paramount title. It is a familiar rule that an estoppel by res adjudicata operates on no one who is neither a party nor privy to the suit in which the estopping judgment was rendered; and we have yet to discover or learn of any rule or principle of the law whereby one may become a party to a litigation without participation therein from the mere fact that he in some manner, other than from the adverse litigant, obtained in
All the cases and authorities, however, in discussing and dealing with the sufficiency of the notice say that it must be unequivocal, express and certain, and requiring the warrantor to appear and defend the action. Furthermore, that “the notice should in all cases come from the covenantee, or be given under his direction or authority, and should be seasonable.” 7 R. C. L. 1199; Morgan v. Haley, 13 L. R. A. (N. S.) 732, 58 S. E. 564, and notes to the L. R. A. volume on page 734. See also note to the case of Andrew v. Dennison, reported in 43 Am. Dec. 565, notes on page 572-3. In the case of Peabody v. Phelps, 9 Cal. 213, approved in Sampson v. Ohleyer, 22 Cal. 200, it was held that “Mere cognizance of the existence of the action is not notice in the legal sense. To be available, the notice must apprize the party whose rights are to be affected, of what is required of him, and the consequences which may follow if he neglect to defend the action.” In Collins v. Baker, 6 Mo. App.
In this, case, however, it is neither alleged nor intimated in the proof that plaintiff gave any notice to the defendant, either verbal or written, of the pendency of the suit in which he claims to have been evicted, and under the authorities, supra, although defendant may have possessed outside knowledge of that fact, it was insufficient to make the judgment binding on him, and the demurrer to the-petition should have been sustained, and under the evidence it should have been dismissed.
Wherefore, the motion to grant the appeal is sustained, the judgment is reversed with directions to grant a new trial and for proceedings consistent with this opinion.