The opinion of the court was delivered by
Fred Bremer owned a quarter section of land which he contracted to convey to S. A. Hoppas. Some controversy arose out of the deal, but it was settled by a supplemental agreement that Bremer was to make the conveyance upon the payment of S3,500, which was part of an indebtedness owing to him by Hoppas upon another matter, Bremer to hold the legal title as security for the payment of that amount.. Hoppas entered into possession, a,nd after an interval tendered the $3,500 and asked for a deed, which was re
The action was brought against several persons, but judgment was rendered only against Bremer, who will be spoken of as the defendant. The wheat in question was sown'and the corn planted by Albert Pachner, who held a lease executed to him on August 1,1922, by W. A. Wichersham, to whom defendant had made a deed on June 21, 1922. Complaint is made of a number of rulings, relating for the most part to matters of procedure, but the most important question involved is whether the judgment of the district court in the specific-performance case controlled the rights of the parties and entitled the defendant and those claiming under him to the use of the land until its reversal by the supreme court. The defendant invokes the general rule that a judgment rendered by a court having jurisdiction is a protection against liability for tort on account of an act done in pursuance thereof pending an appeal without a stay of execution, although it is afterward reversed for error. (4 Enc. L. & P. 694; 4 C. J. 1237, note 54; 2 R. C. L. 299; 1 L. R. A. Digest, title Appeal and Error, § 1003.) Here the judgment rendered in the action brought for specific performance was merely one for the recovery of money. It did not in terms award the possession of the -land to the defendant, although it proceeded upon the theory that because he was unable to convey a good title the plaintiff would have to be content with that sum in lieu of specific performance. It therefore by necessary implication recognized a status under which the plaintiff no longer had a claim to the land itself. The de
Even if the judgment-in the action for specific performance is .treated as one declaring the defendant entitled to the possession of the land, the plaintiff upon its reversal could recover by way of restitution, not necessarily all that he had lost through the error of the court in awarding possession to the wrong person, but all that the defendant had wrongfully gained from him by virtue of it.
“A judgment defendant is entitled to compel the fullest restitution of all benefits which the plaintiff received on account of the enforcement of an erroneous judgment.” (Thompson et al. v. Reasoner, 122 Ind. 454, 458, quoted in substance in 2 R. C. L. 299.)
“The courts have frequently declared that, on the reversal of a judgment, the debtor therein is entitled to specific restitution of everything he has lost by reason thereof, and which still remains in the hands of the adverse party, his agents, attorneys or privies. That is, he is entitled to recover money paid, together with interest thereon, and property which he has transferred or of which he has been dispossessed, together with the rents and profits thereof.” (4 C. J. 1237.)
The final judgment rendered in the action brought for specific performance was not that the title to the land which the plaintiff had lost should be restored to him; it was an adjudication that at all times during the pendency of the action and the appeal he had been the equitable owner, and as such.entitled to its possession and use. His right in that regard was not dependent upon his actual payment of the $3,500 to the defendant, who held the legal title as security,
The jury returned an affirmative answer to the question whether Pachner, who farmed the land in 1923, was acting under a lease from the record title owner of the land. The trial court set aside the finding on the ground that it should not have been submitted. The matter is quite immaterial. Wickersham, who undertook to lease the land to Pachner, had a recorded deed from the defendant before any other deed from the defendant had been filed with the register of deeds, and in that sense had a record title. But this is of no practical consequence here, for the pendency of the action for specific performance was notice, to all claiming under the defendant since its commencement, of the rights of the plaintiff as they were finally determined. (R. S. 60-2601.) A stranger who purchases real estate at a sale dn execution under a judgment appealed from, but not stayed, holds his title notwithstanding a reversal. (R. S. 60-3424.) But one who buys or obtains a lease of property upon the strength of a judgment declaring his grantor to be the owner takes title subject to the final result of the litigation. (Kremer v. Schutz, 82 Kan. 175, 107 Pac. 780, annotated in 27 L. R. A., n. s., 735; note, 36 A. L. R. 421.) However, the record shows the judgment against the defendant was obviously based upon the portion of the crop which he personally received as the landlord’s share, and not upon what Pachner retained.
A number of objections are made, based upon the fact that the petition set out a claim founded on tort, while the case was treated in the instructions and elsewhere as one founded on contract or quasi contract. It does not appear that the defendant was thereby hindered in presenting his evidence or prejudiced in any way, and the variance is therefore not a ground for reversal. (R. S. 60-753.) There is little if any substantial controversy between the parties over the facts. The real issue is one of law which we have decided against the defendant.
The judgment is affirmed.