54 Kan. 403 | Kan. | 1894
The opinion of the court was delivered by
The trial court seems to have disposed of the case upon the theory that the conveyance to the plaintiff substituted him in the place of the former owner and landlord, and that his only right or interest in the land for the unexpired term of the lease of the tenant was the landlord’s share of the crop. The result of this rule would be, that an outstanding lease is no incumbrance, as the purchaser -is entitled to collect only the unpaid rent — nothing more. A purchaser, if he prefers so to do, may recognize the lease of the tenant, and accept the unpaid rent, after he has received his conveyance without any reservations or exceptions. (Smith v. Leighton, 38 Kas. 544.) But if he is unwilling to receive the unpaid rent in satisfaction of his damages he cannot be compelled to do so. He is entitled to all his damages for the injury arising to him from the existence of the lease. The defendants cannot avail themselves of the plaintiff’s knowledge that the tenant was in the open and visible possession of the land at
It is argued that the plaintiff waived his claim for damages under the covenant against incumbrances, because he arranged with the tenant to give possession. The deed speaks for itself. Prior stipulations of every nature are merged in it. The parties have embodied the terms of the contract between them in the written conveyance, and this cannot be altered or contradicted by prior declarations or agreements. (Porter v. Bradley, supra.) Further, at the time the plaintiff accepted the deed, he informed the defendants “that he must have possession of the land purchased by him, and would stand upon the contract.” It is difficult in this case to determine from the findings of fact the fair rental value of the land from April 1,1887, to the expiration of the term of the tenant, or the actual injury to the plaintiff arising from the existence of the lease.
“Where the outstanding title or the incumbrance has been obtained or removed by purchase, it is considered that the plaintiff is entitled to recover the amount which he has fairly and reasonably paid for that purpose, the burden of proof being upon him to show what the outstanding title or incumbrance was really worth, the mere fact of payment being, in general, no evidence whatever of this, and in the absence of such evidence it seems that only nominal damages can be recovered.” (Rawle, Cov., § 192.)
The evidence is not preserved. There is a finding of the
We suppose that other and additional findings were not made by the trial court, because the case seems to have been decided, as before stated, upon the theory that the plaintiff, by his conveyance from the defendants, was merely substituted for the former owner and landlord. Under these circumstances, we cannot, upon the findings as now presented, satisfactorily dispose of the case. The findings do not support the judgment rendered, and therefore a different judgment is necessary. On account of the absence of necessary findings, the judgment must be reversed, and the cause remanded for a new trial, or for additional findings upon the evidence introduced. The judgment finally to be rendered, of course, must follow the views of the court as herein expressed.