Clark v. Fisher

• Decision Date: 08 December 1894
• Citation: 54 Kan. 403,38 P. 493
• Parties: AMOS B. CLARK v. R. E. FISHER et al
• Court: Kansas Supreme Court

38 P. 493

54 Kan. 403

AMOS B. CLARK v. R. E. FISHER et al

Supreme Court of Kansas

December 8, 1894

Error from Franklin District Court.

ON the 28th of February, 1889, Amos B. Clark brought his action against R. E. Fisher and Jennie Fisher to recover $ 350, with interest from the 2d of May, 1887, on the covenant against incumbrances set out in a deed executed the 1st of April 1887, by the defendants to him. The recitations of the deed necessary to be referred to are as follows:

"The said R. E. Fisher and Jennie Fisher do hereby covenant and agree, that at the delivery hereof they are the lawful owners of the premises above granted, and seized of a good and indefeasible estate of inheritance therein free and clear of all incumbrances, except a mortgage of $ 800 to the Kansas Loan and Trust Company, which said second party hereby assumes and agrees to pay; and that they will warrant and defend the same in the quiet and peaceable possession of the said party of the second part, his heirs and assigns forever, against all persons lawfully claiming the same except as to said mortgage."

Trial had November 8, 1889, before the court without a jury. The court took the case under advisement, and rendered judgment for the defendants on January 31, 1890, making findings of fact and conclusions of law.

It appears from the record that, sometime before April 1, 1887 the defendants entered into a written agreement with the plaintiff to convey to him their 80 acre tract of land in Johnson county for the sum of $ 4,200, and to give immediate possession on delivery of the deed. On April 1, 1887, they made such conveyance, by warranty deed containing the covenants above referred to. At that date, J. A. Dent had been in open and visible possession, as R. E. Fisher's tenant, for about three years. In the fall of 1886, a new lease had been made to Dent, by the terms of which he was to plant 60 acres in wheat, harvest it, and deliver to Fisher, in Olathe, one-third of the grain as rent, and he was also to have the use of the house and garden until the wheat should be harvested. He likewise agreed to yield possession on 30 days' notice, in case of a sale by Fisher; but with the privilege of harvesting and removing the crop. He had no lease of or claim upon the meadow and pasture after the grazing season of 1886.

On April 3, 1887, only two days after the deed was delivered to him, Clark conveyed the land to North and others, of Kansas City, Mo., the sale thereof to them having, in fact, been negotiated and agreed upon before the conveyance to Clark. Plaintiff's grantees, North et. al., at once sent surveyors to lay off the land into town lots, it being adjacent to Olathe; but these surveyors having entered into Dent's wheat field, and commenced to drive stakes and mark off lots, he ordered them to desist. They did so. Then North & Co. demanded possession of Clark, who thereupon bought from Dent his two-thirds interest in the crop for $ 300, and he then made no further difficulty. Thereupon, North & Co. completed the survey, and plowed roadways, or streets, as designated on the survey, through the growing wheat, and in due time caused the same to be harvested by Dent, who harvested and threshed the same for one-half thereof, North & Co. receiving and retaining the other half. The amount harvested altogether was 700 bushels, worth 60 cents per bushel. If none had been plowed up for streets, the amount would have been 850 bushels, and its value $ 510. When the deed from the defendants to plaintiff was ready for delivery, the defendants, residents of Ottawa, sent their agent with the deed to Olathe to complete the sale. At that time, some details had to be settled with reference to interest upon a mortgage then outstanding on the land, and to which the conveyance was subject. The agent had an interview with the plaintiff upon the matter, and was about to proceed to see Dent, the tenant, relative to possession, when the plaintiff stated, in substance, that North & Co. were about to purchase an adjoining tract, and he believed it could be arranged to have Dent move upon that, and that he could arrange the matter better than the agent, and that it would be best for the agent to say nothing to Dent, as the latter might take an unfair advantage.

He insisted, however, that he must have possession; that possession must follow the deed, as he had agreed to give possession to others, to whom he had negotiated a sale, and that he would stand upon the contract. After this interview the deed was delivered, and the consideration paid before any agreement had been made with Dent as to possession. The plaintiff never had possession, and only desired it that he might deliver such possession to his grantees, North & Co. The $ 300 paid to Dent was the reasonable value of his possession. Such possession, however, was of but little value, aside from his interest in the crop. The plaintiff made the arrangement with North & Co., owners of an adjoining tract, as contemplated, whereby Dent was permitted to move upon that tract, without expense to the plaintiff; so that Dent was satisfied to and did give up his possession by being paid what appears to be the fair value of his interest in the wheat.

Judgment having been rendered in favor of the defendants and against the plaintiff, the plaintiff excepts, and brings the case here.

Judgment reversed and cause remanded.

Mechem & Smart, for plaintiff in error.

Jno. W. Deford, and W. A. Deford, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The plaintiff obtained his deed from the defendants on the 1st of April, 1887; this contained a covenant against incumbrances. At the time of the conveyance the land was in the possession of J. A. Dent, the tenant of R. E. Fisher. Under the terms of this lease, he was to yield possession on 30 days' notice in case of a sale by Fisher, with the privilege of harvesting and removing a crop of wheat upon 60 acres of the land. Under the terms of the lease, Dent was to harvest and deliver to Fisher one-third of the wheat as rent. An incumbrance has been defined to be "every right to, or interest in, the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance." (Rawle, Cov., §§ 75, 76, 191.) Hence, an outstanding lease is an incumbrance. (Smith v. Davis, 44 Kan. 362; Fritz v. Pusey, 13 N.W. 94.)

As the plaintiff's interest in the property purchased by him was diminished to the extent of the rights transferred by the lease to J. A. Dent, there was a breach of the covenant against incumbrances. The lease would not have expired until in July...