Graffenreid v. Elliott

• Decision Date: 07 May 1927
• Docket Number: 27,331
• Citation: 255 P. 971,123 Kan. 477
• Parties: MOLLIE DE GRAFFENREID, Appellee, v. MABLE ELLIOTT, Appellant
• Court: Kansas Supreme Court

255 P. 971

123 Kan. 477

MOLLIE DE GRAFFENREID, Appellee, v. MABLE ELLIOTT, Appellant

No. 27,331

Supreme Court of Kansas

May 7, 1927

Decided January, 1927.

Appeal from Cherokee district court; FRANK W. BOSS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COVENANTS--Action for Breach--Sufficiency of Evidence. In an action to recover for breach of warranty contained in a deed the evidence considered and held sufficient to sustain the judgment.

2. SAME--Generally. Various alleged errors considered and held not to require a reversal.

E. B. Morgan, of Galena, for the appellant.

C. B. Skidmore, Charles Stephens, F. E. Dresia and Hubert Horning, all of Columbus, for the appellee.

OPINION

HOPKINS, J.:

The action was one to recover damages for breach of warranty contained in a warranty deed. Plaintiff prevailed and defendant appeals.

The facts are substantially these: In the summer of 1920, plaintiff and her children owned 120 acres of land in Cherokee county. She entered into a contract with James H. Elliott, husband of the defendant, to convey the land to Elliott for some cash and in exchange for certain real property in Columbus. Elliott did not hold title to the Columbus property but held a bond or contract for deed from the AEtna Building and Loan Association. The contract between plaintiff and her children and Elliott provided that there should be a conveyance by general warranty deed together with abstract showing good title; that the deeds be deposited in the First National Bank of Columbus to be delivered upon completion of the title. Defendant was not a party to the agreement. The agreement was not deposited in the bank according to its terms, and the negotiations were considerably delayed. Eventually, plaintiff's agent met with James H. Elliott and closed the deal. Elliott and his wife had executed a warranty deed which he delivered to the plaintiff's agent conveying to plaintiff the Columbus property. The deal was closed October 1, 1920, following which, possession of the property was delivered to the plaintiff. Elliott had failed to procure a deed from the AEtna Building and Loan Association pursuant to his contract with that company. Plaintiff held possession of the property until the AEtna Building and Loan Association foreclosed its contract against Elliott, plaintiff being made a party to the suit. The property was sold to satisfy a lien of the AEtna Building and Loan Association and plaintiff's title extinguished. Judgment was rendered in such action in favor of the plaintiff and against Elliott. The present action is to recover against Mrs. Elliott. The warranty contained in defendant's deed to plaintiff on which the action is based reads:

"And said parties of the first part, for themselves and their heirs, executors, or administrators, do hereby covenant, promise and agree, to and with said party of the second part, that at the delivery of these presents they were lawfully seized in their own right of an absolute and indefeasable estate of inheritance in fee simple of and in all and singular the above granted and described premises, with the appurtenances, that the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances, of what nature or kind so ever, and that they will warrant and forever defend the same unto said party of the second part, her heirs and assigns, against said parties of the first part, their heirs, and all and every person or persons whomsoever lawfully claiming or to claim the same."

The defendant contends that the court erred in the admission of evidence showing the transaction between her husband and plaintiff's agent, Stiles, at the time of the delivery of the deed, and that there was no competent evidence upon which to base the court's finding and judgment; that the deed was delivered contrary to the terms of the escrow agreement; was unauthorized and not binding on the defendant. In support of her contention, she cites 10 R. C. L. 636, to the effect that:

"Generally speaking, an escrow delivered by the depository before compliance with, or contrary to the conditions on which it is to be delivered, is inoperative. No title passes to the grantee, and with certain exceptions hereinafter noted, a bona fide purchaser acquires no rights against the grantor of a deed thus improperly obtained."

And, 1 Devlin on Real Estate, ...