Hamilton v. Binger, 36754.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: [162 Kan. 417] PARKER, Justice.
• Citation: 162 Kan. 415,176 P.2d 553
• Parties: HAMILTON v. BINGER.
• Docket Number: 36754.
• Decision Date: 25 January 1947

176 P.2d 553

162 Kan. 415

HAMILTON
v.
BINGER.

No. 36754.

Supreme Court of Kansas

January 25, 1947

Appeal from District Court, Shawnee County, Division No. 3; Dean McElhenny, Judge.

Action by Bertha Hamilton against Herbert A. Binger for the balance due on the purchase price of realty. Judgment for defendant, and plaintiff appeals. [176 P.2d 554]

Syllabus by the Court.

1. Where an action is submitted to the district court for judgment, on the pleadings and an agreed statement of facts, a motion for new trial is unnecessary.

2. Under the circumstances described in syllabus 1 no trial errors, making a motion for new trial necessary or proper, are committed and the only function of the trial court is to determine questions of law.

3. When a motion for new trial is filed under the conditions described in syllabus 1 and 2, it is to be treated as tantamount to a request for a re-examination of questions of law, addressed solely to the discretion of the trial court, and any ruling thereon is not in and of itself an appealable order.

4. If, when error in the overruling of a motion for new trial is assigned as error, neither the motion nor its grounds are set forth in the record, an appellate court cannot ascertain [162 Kan. 416] whether error was committed and will not review questions pertaining to the disposition of such motion in the court below.

5. An assignment of error stating the court erred in rendering judgment against plaintiff amounts to a statement the judgment is wrong and presents no specific question for review. [176 P.2d 555]

6. The object of an abstract of title is to enable the purchaser or his counsel to determine the sufficiency of the title. It should contain whatever concerns the source of the title and its condition.

7. When a contract for the purchase of land provides the vendor shall furnish the vendee with an abstract showing marketable title such abstract must show on its face a good title in the vendor.

8. A showing of a marketable title in the abstract is a condition precedent to be performed by the vendor before he will be permitted to recover any balance claimed by him to be due on a contract of the kind referred to in syllabus 7.

9. In an action to recover the balance alleged to be due on a contract for the sale of land providing that the vendor was to furnish the vendee an abstract showing marketable title various defects were alleged to exist in the title. The trial court rendered a general judgment to the effect the abstract tendered did not show marketable title and the record on appeal does not indicate whether that judgment was based upon one or all of the alleged defects. Held, that in such a situation if any one of the alleged defects made the title unmarketable the judgment must be upheld.

10. The record in the action described in syllabus 9 discloses that the certificate to the abstract of title tendered the vendee did not purport to cover probate court records from the date of acquisition of title from the United States down to and including October 27, 1909. Held, that in this jurisdiction, where probate courts are courts of record and have jurisdiction and control over certain matters affecting titles to real estate, an abstract failing to contain a certificate affirmatively showing that it covers probate court records of the county wherein the land described in the abstract is located does not show a marketable title.

W. Glenn Hamilton, of Topeka (E. R. Sloan, Floyd A. Sloan, and Eldon Sloan, all of Topeka, on the brief), for appellant.

Willard N. Van Slyck, Jr., of Topeka (Clayton E. Kline, M. F. Cosgrove, Balfour S. Jeffrey, and Robert E. Russell, all of Topeka, on the brief), for appellee.

[162 Kan. 417] PARKER, Justice.

This was an action to recover the balance claimed to be due on a real estate contract. Defendant prevailed and plaintiff appeals.

Material portions of the petition read:

'2 On or about September 8, 1945, the plaintiff and defendant entered into a written contract, a full, true and correct copy of which is hereto attached marked Exhibit 'A' and made a part hereof

'3. Plaintiff has fully complied with her part of said contract and has heretofore furnished and delivered to the defendant an abstract of title showing marketable title to the real estate described in said agreement to be vested in plaintiff, notwithstanding which the defendant has refused to pay to plaintiff the $300.00 provided for in said agreement.

'Wherefore plaintiff prays judgment against the defendant for the sum of $300.00.'

Pertinent provisions of the answer are:

'Further answering, defendant alleges that plaintiff furnished and delivered to defendant an abstract of title as alleged in the third paragraph of the petition, but defendant alleges that said abstract did not show marketable title to the real estate described in the contract attached to plaintiff's petition, but on the contrary, disclosed that plaintiff's title to said real estate was not marketable.

'Wherefore, defendant prays that plaintiff take nothing by her petition; and that this defendant have judgment for his costs.'

Clauses of the contract, giving rise to the controversy, provide:

'First party agrees to sell and second party agrees to purchase on the terms hereinafter [176 P.2d 556] stated the following real estate situated in Shawnee County, Kansas: (here follows description).

'The consideration is thirty-eight hundred dollars payable thirty-five hundred dollars cash, receipt of which is hereby acknowledged. The balance, three hundred dollars, shall be paid in cash on delivery of abstract of title to second party showing marketable title in first party.'

With the pleadings in the condition just related, and an extensive agreed statement of facts alleged to include all claimed defects in the title, the parties waived a jury and submitted the cause to the court for decision.

The trial court found generally for the defendant and rendered judgment in his favor. Its decision, as reflected in the journal entry of judgment, which is quoted in toto, reads:

'Now on this 12th day of July, 1946, the above entitled having been submitted to the court on June 28, 1946, on an agreed statement of facts, came regularly on for decision.

[162 Kan. 418] 'The court, being fully advised in the premises, finds that the abstract of title tendered to the defendant by the plaintiff did not show marketable title in the plaintiff.

'It is therefore ordered by the court that judgment be and the same is hereby rendered in favor of the defendant for his costs.'

In due time plaintiff perfected an appeal from the judgment and she now contends the trial court erred (1) in rendering judgment for the defendant and against the plaintiff, (2) in overruling plaintiff's motion for a new trial.

Technically the grounds relied on by appellant for reversal of the judgment in her specification of errors present nothing for review.

We have repeatedly held the first assignment the court erred in rendering its judgment amounts to nothing more than a statement the judgment is wrong and does not specify any error. Brewer v. Harris, 147 Kan. 197, 75 P.2d 287; Biby v. City of Wichita, 151 Kan. 981, 982, 101 P.2d 919; Heniff v. Clausen, 154 Kan. 717, 121 P.2d 196; Lambeth v. Bogart, 155 Kan. 413, 415, 125 P.2d 377; Board of County Com'rs of Marion County v. Clark 157 Kan. 132, 134, 138 P.2d 449 and Gale v. Fruehauf Trailer Co., 158 Kan. 30, 145 P.2d 125.

The second specification of error is not good for several reasons. In the first place, when an action is submitted to the district court for judgment on the pleadings and an agreed statement of facts, no motion for a new trial is required. Under such circumstances no trial errors, making a motion for a new trial necessary or proper, are committed and the only function of the trial court is to determine questions of law. Central Fibre Products Co. v. State Tax Comm., 150 Kan. 665, 95 P.2d 353; Jackson County Com'rs v. Commission of Revenue and Taxation, 156 Kan....