McKee v. Bain, 11 Kan. 569

McKee v. Bain

11 Kan. 569 | Kan. | 1873

*577The opinion of the court was delivered by

Valentine, J.:

This was an action for the breach of certain real covenants. On the 29th of April 1868, Josephine E. S. McKee bought of John W. Bain and Mary M. his wife a certain lot in the city of Leavenworth taking a general warranty deed therefor, and in consideration thereof paid $2,050 cash down and gave her two promissory notes, each for $2,000, drawing interest from date at the rate of ten per cent, per annum, one due in one year and the other due in two years; and she also gave a mortgage on said lot to secure the payment of said notes. Mrs. McKee took possession of said lot under said deed, and made lasting and valuable improvements on the lot.' Afterward Alice A. Thomas by an action in which Mrs. McKee was a party, and of which the Bains had notice, showed that she,. Mrs. Thomas, had the paramount title to said lot. Mrs. McKee expended $196.25 as costs in defending said suit, and also paid $500 therein as attorney-fees, “but the court (below) finds from the testimony that any sum over four hundred dollars paid by the plaintiff (Mrs. McKee) as attorney-fees was unreasonable and excessive.” On the 19th of March 1872 Mrs. McKee, in accordance with the provisions of the occupying claimant law, (code, §§ 601 to 613,) bought in the. paramount title of Mrs. Thomas and paid therefor $5,000. Upon these facts Mrs. McKee asked in the court below a judgment against the Bains for the amount she paid the Bains, for the amount she paid as costs and attorney-fees, with interest on these several amounts, and also asked that the said notes and mortgage should be canceled, and that the apparefit- incumbrance resting upon her title by virtue of said mortgage should be removed. On the 16th of November 1872 the court below rendered judgment in favor of Mrs. McKee and against the Bains for $43.50, and that said notes and mortgage be canceled and that the lot be free from any incumbrance by reason thereof. Mrs. McKee now seeks a reversal or modification of said judgment, claiming that the same should have been *578for a much larger amount. We think the decision in the case of Dale v. Shively, 8 Kas., 276, substantially determines all the questions involved in this controversy. The covenant of seizin is broken as soon as the deed is made, if the title attempted to be conveyed is bad; and when the vendee afterward buys in the paramount title the measure of his damages as against the vendor is, as a rule, the amount with interest it necessarily costs to obtain the paramount title up to the amount of the purchase-money, with interest.

In some cases the vendee may also recover the costs and attorney-fees necessarily paid by him in prosecuting or defending a suit with reference to the land attempted to be conveyed. In the present case we think Mrs. McKee is entitled to recover from the Bains just the excess of what she has necessarily and actually paid over and above what she agreed to pay to the Bains. For instance: she agreed to pay as follows: Cash down, $2,050; two notes, $4,000; interest on the notes to March 19, 1872, $1,555.55; total agreed to be paid up to March 19, 1872, $7,605.55. She actually and properly paid as follows: Cash down, $2,050; attorney’s fees, $400; costs, $196.25; for paramount title, March 19th 1872, $5,000; total paid March 19th 1872, $7,646.25. She therefore paid $40.70 more than she agreed to pay for the lot. The judgment in this case was rendered November 16th 1872, for $43.50, a little more than said $40.70, with interest. As the plaintiff in error has raised some question about taking into consideration the interest on said notes we should say that she agreed to pay the interest as well as the principal, and one must be taken into consideration just as much as the other.

The title of the Bains to said lot was derived through judicial proceedings, and although defective on account of irregularities in the judicial proceedings yet it cannot be wholly ignored. The title was apparently good. The Bains acted in good faith in selling, and Mrs. McKee acted in good faith in purchasing and defending. Mrs. McKee obtained possession of said lot under and by virtue of Bain’s title, *579and she held possession thereunder for nearly four years without paying anything therefor to Bains, or to any one else except what she paid-as consideration for the lot; and she still continues to hold such possession, never having been in fact dispossessed. Bains’ title, though defective, rested as a cloud upon the paramount title. By virtue of said conveyance from Bains to Mrs. McKee, this cloud was extinguished, or rather transferred from the Bains to Mrs. McKee. This was something of value. And after the action between Mrs. Thomas and Mrs. McKee was determined, the right of Mrs. McKee to compel Mrs. Thomas to purchase Mrs. McKee’s improvements on said lot, and pay therefor $14,700 or to sell the lot to Mrs. McKee under the occupying claimant law for $5,000, was founded solely upon the title which Mrs. McKee obtained from the Bains. The title therefore which she got from Mrs. Thomas, had its origin in the title she got from the Bains. Besides, Mrs. McKee appeals to a court of equity to cancel said notes and mortgage. Said mortgage was a cloud, and an apparent if not a real incumbrance, upon the title to said lot. Is the removal of said cloud, and said apparent incumbrance, of no value? Now, by virtue of the conveyance from the Bains to Mrs. McKee, and the judgment in this case, Mrs. McKee has obtained a good title to her lot free and clear from all incumbrances or clouds, all that she bargained for, or expected to get, and all that she has any right to expect; and she has paid to all persons in the aggregate only what she agreed to pay to the Bains. She has lost nothing by the failure of Bains’ title. The Bains have lost thereby $5,599.05, principal and interest up to March 19th, 1872, yet they acted in just as good faith as Mrs. McKee. It is not necessary in this case to decide what would have been the rights of the parties if the amount which Mrs. McKee expended in defending said suit, and in buying in the paramount title, had been less than the amount of said notes and interest. We think the judgment of the court below was correct, and therefore it must be affirmed.

All. the Justices concurring.