96 Kan. 684 | Kan. | 1915
The opinion of the court was delivered by
The action of Cox v. Stambaugh was one for damages for breach of a covenant against incumbrances contained in a warranty deed. The plaintiff recovered and the defendants appeal. The action of Foster v. Cox was one to rescind the transaction whereby Cox acquired the land conveyed by the deed and to compel Cox to deed the land to Foster. Cox recovered and Foster appeals.
Stambaugh has had no application overruled and so has nothing on which to base an assignment of error. It was Foster’s application which was overruled. Foster made no complaint about the court’s ruling, abandoned the interplea, and chose another remedy. If the court had abused its discretion as against Foster it would have made no difference to Stambaugh. He could defend and did defend by setting up such parts of the interplea as he desired to appropriate. Besides all this, Stambaugh contends the case against him and the case of Foster v. Cox were really tried together and that one set of findings of fact covers both cases. While there were in fact separate trials, the evidence produced in Stambaugh’s case, which was tried first, covered all the issues in Foster’s case as fully as though his application to intervene had been granted. When Foster’s case was tried it was agreed that the evidence introduced at the other trial should be considered. The court made but one set of findings of fact. These findings covered all the issues in both cases and were clearly intended to dispose of both cases. But the findings of fact were filed in Stambaugh’s case and consequently he is without shadow of right to complain because Foster was not allowed to inter-plead.
As between Stambaugh and Foster a covenant against incumbrances was coming to Foster. As between Foster and Cox a covenant against incumbrances was coming to Cox. It was arranged that Stambaugh should make the covenant direct to Cox. All parties were satisfied, the covenant was made that way, and Stambaugh is liable to Cox for breach of the covenant under elementary principles of the law of contracts.
The covenant against incumbrances was broken because of the existence of the mortgage for $1000. The covenant was broken as soon as it was made, on August 14. A good tender made in October of the amount of the mortgage would not have defeated the action commenced on September 18. If ■kept good such tender would have stopped interest, and if
The covenant against incumbrances was also broken because of the existence of the $420 mortgage. The court made the following finding of fact:
“Seventh: In addition to the said $4000.00 mortgage recited in the exception clause of said deed, there was also a valid subsisting mortgage resting against said land for the sum of $420.00 at the time of the deed by the said Stambaugh and wife to the said Cox, and there now remains due on said mortgage the sum of $-.
“This $420.00 mortgage above referred to is what is known as a commission mortgage. The loan was negotiated for 7 per cent for five years and 2 per cent of this, amounting to $420.00 was put in a second and what'is known as a commission mortgage.
“At the time the said Stambaugh and wife deeded the said land to the said Cox he did not know of the existence of the said $420 mortgage or the amount remaining due thereon.”
The correctness of this finding is not disputed, but Stambaugh complains that the court refused to make a finding that Cox assumed the $420 mortgage as interest on the $4000 mortgage. There is no testimony abstracted which would sustain such a finding. In his statement of the case Stambaugh refers to some of the preliminary negotiations in ydiich interest payments were discussed. The matters thus presented would not sustain the finding requested. The deed shows what Cox assumed and the written obligation could not be enlarged by parol evidence.
While the actions were pending, and in February 1914, F. D. Foster, a brother of Guy Foster, advertised a sale of all of .Stambaugh’s personal property. Cox promptly attached on the ground of attempted conversion and disposal of property with intent to defraud. Stambaugh filed a motion to discharge on-•the ground that the affidavit for attachment was untrue. F. D.
The result is that the judgment against Stambaugh must be affirmed, and it is so ordered.
As already indicated, the action of Foster against Cox was one for rescission. The deed to Cox recited a consideration of one dollar and other valuable considerations. The true consideration could be shown by parol evidence. When the parol evidence was all in it appeared that the consideration for the sale of the land by Foster to Cox consisted of three elements: $2000 in cash which Cox paid; payment of a $4000 mortgage on the land, which Cox assumed; a parol agreement by Cox to convey to a purchaser produced by Foster within a year for a price above $6000, the excess above $6000 to be divided. The equitable ground for rescission was nonperformance of the last part of the consideration stated, whereby Foster lost $750. The general.rule is that equity will not rescind an executed conveyance of real estate for mere failure to pay an installment of the consideration. Unless there be fraud, mistake, insolvency of the grantee, or other recognized ground of. equitable interference the vendor will be remitted to his legal remedy. Likewise, generally, failure to perform some promised act other than the payment of money forming part of the consideration for an executed conveyance gives the vendor no right of rescission unless the promise amount to a condition. Except perhaps in the case of “support” deeds, and some others, the promise is regarded not as a condition subsequent, but as a covenant giving rise to an action at law in case of
The result is the judgment in favor of Cox in the second action must be affirmed, and it is so ordered.