135 Ky. 47 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
In 1899 Albert Jennings conveyed with covenant of general warranty to George Snadon a small parcel of land. Afterwards Snadon conveyed with covenant of warranty the land to Fort, and in 1902 Fort conveyed with covenant of warranty to W. H. Salmon. After Salmon obtained title to the land, he brought suit against Jennings, who was in possession, to recover it, and succeeded in the lower court. From the judgment Jennings prosecuted an appeal to this court, and in an opinion that may be found in 98 S. W. 1026, 30 Ky. Law Rep. 168, it was held that the deed executed by Jennings to Snadon was in fact a mortgage to secure a debt due by Jennings to Snadon. In the course of the opinion the court further said: “Fort got from Snadon no better title than Snadon had. The facts that Snadon told Fort put him on notice as to the condition of the title if he did not know them before. The only title that Fort got he got from Snadon, and Snadon had nothing but a mortgage. Salmon lived in 250 yards of Jennings, and, aside from the proof showing that he had notice
Upon a return of the case the petition of Salmon was in accordance with the opinion of this court dismissed, and a judgment entered -adjudging Jennings his costs. Thereupon Salmon brought this suit against Snadon upon the covenant contained in his deed to Fort, basing his action upon the ground that, as he purchased from Fort, he was entitled to the benefit of the convenant contained in the deed made by Snadon to Port. The lower court rendered a judgment in favor of Salmon, and Snadon appeals.
There is no doubt that a vendee who has been evicted, or who has suffered such a loss as would entitle him to maintain an action upon a covenant of general warranty, may bring his action to recover damages for the breach against a remote vendor who conveyed the land with covenant of warranty. He is not confined to an action against his immediate vendor. Thomas v. Bland, 91 Ky. 1, 14 S. W. 955, 12 Ky. Law Rep. 640, 11 L. R. A. 240; Hunt v. Orwig, 37 B. Mon. 74, 66 Am. Dec. 144; Cummins v. Kennedy, 3 Litt. 118, 14 Am. Dec. 45.
But, when a vendee seeks to recover on a warranty contained in a deed made hy a remote vendor, with full knowledge of the fact that the conveyance was not intended to pass the title, he takes the place of the immediate vendee of the vendor whom he sues, and can occupy' no better position than did such vendee.
Assuming, then, that Salmon, who purchased with notice of the character of conveyance Port took and who consequently occupies no better position than Port did, is remitted to the rights and remedies of Port, the question naturally arises, could Port, if he had been evicted, have maintained an action against
The judgment is reversed, with directions to dismiss the petition.