Butt v. Riffe

• Decision Date: 03 March 1880
• Citation: 78 Ky. 352
• Parties: Butt v. Riffe.
• Court: Kentucky Court of Appeals

Page 352

78 Ky. 352

Butt v. Riffe.

Court of Appeals of Kentucky.

March 3, 1880.

APPEAL FROM LINCOLN CIRCUIT COURT.

WELCH & SAUFLEY FOR APPELLANT.

HILL & ALCORN FOR APPELLEE.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

The appellant, P. C. Butt, on the 11th of August, 1875, purchased of the appellee, George W. Riffe, two contiguous tracts of land, in the county of Lincoln, for which he paid in hand $4,000, and executed four notes for $2,119 each. A conveyance was made of the land, retaining a lien for the unpaid purchase money, and containing a covenant on the part of the appellee that he would give to the appellant "free and full possession of the land on the first of January, 1876, and warranting the title unto the said Butt, the appellant, against the claims of all persons whatsoever."

The appellant entered into the possession under this conveyance, and in a few months thereafter one J. R. Napier instituted an action in the Lincoln Circuit Court against the appellant, asserting a right of way over the lands conveyed by Riffe to appellant, and alleging that this right existed prior to the date of the conveyance by Riffe, and that, while appellant was vested with the fee, he, Napier, was entitled to this right of way as against all persons. A trial of that action was had, resulting in a judgment for Napier to the effect that he was entitled to a passway, embracing a strip of land twenty-five feet in width and one half mile in length, midway through the land or one of the tracts conveyed by the appellee to the appellant. After the termination of that action, the appellee instituted the present action on the lien-notes, asking a judgment in personam, and also a judgment to sell the land. The appellant pleaded, by way of counter-claim, the damages he had sustained by reason of the recovery of the right of way by Napier, including a reasonable attorney's fee and costs in defending that action; alleging that the appellee had notice of the nature and character of the action in which the recovery was had. A demurrer was sustained to the defense made, and an amended pleading filed by the appellant, in which it is alleged that at the time of the sale and conveyance by the appellee to him he was ignorant of any claim that Napier had to the passway, and that his vendor had concealed from him the existence of such a right. A demurrer was sustained to the answer as amended, and a judgment having been rendered for the appellee, the case is here for revision.

It is maintained by counsel for the appellee that the existence of the right to a passway over the land sold appellant was a mere encumbrance, and not embraced by a covenant of warranty as to title; that the appellant, having knowledge of the fact that a passway over the land was used by Napier, it was his duty to have demanded a covenant against encumbrances, and, failing to do so, must abide the consequences. Whether the appellant had knowledge of the existence of the passway cannot be made the subject of inquiry, as the question is alone to be considered upon the statement contained in the counter-claim, the averments of which, on the demurrer, must be regarded as true. The various covenants recognized by the rule of the common law for the protection of the grantee are not to be found in the...