48 Kan. 700 | Kan. | 1892
The opiuion of the court was delivered by
It is obvious from the findings and concedí d facts that Louis Hammerslough did not have the quantity and quality of title which he undertook to convey to Margaret A. Hackett in his deed of January 10, 1879. He claimed title to the land through a conveyance made to him on March 5, 1874, by Levison & Co., who it would seem obtained all the title and interest of George W. Campbell through foreclosure proceedings and a sale and conveyance made to Levison & Co. on September 29, 1873. The mortgage had been given by George W. Campbell on October 6, 1866, and it is contended that as to 160 acres of the land mortgaged by Campbell, and which was conveyed by Hammerslough, Campbell only had such a share therein as descended to him from W. R. Campbell, who was his father and the patentee of the land. Although the plaintiff in error contends that George W. Campbell was the only ehild of W. R. Campbell and his only surviving heir, there is testimony tending to show that W. R. Campbell left surviving him a widow and eight children, and there is nothing to show that there was a transfer or relinquishment of their interest to George W. Campbell. A portion of the land appears to have been sold for taxes, and on May 14, 1877, a tax deed was executed to Austin Corbin for the same; but in October of the same year Corbin reconveyed the land to Coffey county, and Hammerslough subsequently redeemed the land from the tax sale and paid the taxes which had been charged against it. After Louis Hammerslough had obtained the deed from Levison & Co., he sent the same to the register of deeds in Coffey county to be recorded, but for some reason it was not entered of record. It was mislaid or lost and was npt found until after the commencement of these proceedings. There was therefore no rec-
From the conclusion which we have reached, it is unnecessary to determine how far the title of Hammerslough fell short of a complete title at the time of his conveyance to Hackett. The covenants of seizin and of right to convey were broken at the time of the execution of the conveyance, and if Hackett had brought her action upon the covenants at once, and tendered a reconveyance of the same to Hammer-slough, she would have been entitled to recover the consideration paid, with interest. Instead of availing herself of this opportunity, however, she accepted the deed and the land, and by her act and the operation of law she has transferred the land to others. On February 27,1879, she, with her husband, executed a mortgage upon the land to Foreman & Freidlander, to secure the payment of a promissory note for $600, which was due March 1, 1880. The debt and mortgage were afterward assigned to Lathrop & Smith, and default being
The judgment of the district court will be reversed, and the cause remanded for further proceedings.