11 Kan. 569 | Kan. | 1873
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
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,