6 Kan. 27 | Kan. | 1870
The opinion of the court was delivered by
The defendants here and below, were, with others, on September 11th, 1865, the trustees of the Baptist church and society of Leavenworth city, in this state. On the day named, they executed and delivered to the plaintiff a deed of and to certain real estate situate in the county of Leavenworth, which said deed contained the usual covenants of warranty for quiet and peaceable possession of the said property, and was executed in the individual names, and under the private seals of the parties grantors. Afterwards the said real estate was recov
But it is said that these defendants intended to bind the corporation as to every agreement in the deed; and that Buch effect should be given to it and every part of it as to carry out such intention. It is perhaps the best, and under the circumstances at least a sufficient answer to this proposition to say, that they did not do what it is thus claimed they intended, if effect is to be given to the language used according to its naturally received and legal import. [See cases above cited.] And there seems to be no very good reason why the natural and legal construction should not be adopted. But it is further said, that if the parties only bound themselves by their covenant of warranty, then that part of their deed which refers to their successors must be held void. This may be true; but this is only a very small part of the deed, and certainly it is better, and more in accord with just and well-established rules of construction, to regard such reference as ineffective for any purpose, or as surplusage, than to give it such force as will do violence to all the remainder o(f such deed, by compelling a meaning to be given thereto which is not expressed, and would not otherwise be suggested. But see as to this part of the case, 14 Conn., 245, and other cases cited by plaintiff in error, which are full, and afford a satisfactory disposition of the questions here involved. Upon the conclusions thus reached in this case, it seems to follow too plainly, and especially from the authorities, to require argument to show it, that these parties must be held to have bound themselves by their said covenant of warranty in the deed
The judgment of the district court is reversed, and the cause remanded with instructions to grant a new trial.