Hurt v. Stout
| Decision Date | 07 June 1919 |
| Docket Number | 21,991 |
| Citation | 181 P. 623,105 Kan. 54 |
| Parties | WILLIAM A. HURT, Appellant, v. E. E. STOUT and ALICE STOUT, Appellees |
| Court | Kansas Supreme Court |
Decided January, 1919.
Appeal from Ottawa district court; DALLAS GROVER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. SPECIAL FINDINGS--Control General Verdict. Special findings of a jury control their verdict and, although one of the findings is set aside for lack of support in the evidence the court may render judgment on the remaining special findings notwithstanding the verdict, where the discarded finding does not conflict with or impair the force of the other findings which of themselves settle the substantial issues in the case.
2. WARRANTY DEED--Alteration Without Consent of Grantors--Deed Rendered Void as to Grantee. In an action for a breach of warranty against encumbrances, an alteration made at the request of the grantee after the execution and delivery of the deed, without the knowledge or consent of the grantors, which substantially reduced the mortgage indebtedness that the grantee was to assume and pay, it is held that the alteration was material and rendered the instrument void so far as the grantee is concerned.
3. SAME--Alteration by Direction or Procurement of Grantee. An alteration made by the direction or procurement of the grantee without the knowledge or consent of the grantors, has the same invalidating effect as if made by the grantee with his own hand.
4. PRACTICE--Motion for Judgment on Special Findings--Motion for New Trial. The filing of a motion for a new trial within three days after the verdict is returned, following the filing of a motion for judgment on the special findings which remains undetermined, does not operate as a waiver of the motion for judgment on the findings.
William T. Jamison, and J. G. Hutchison, both of Kansas City, Mo., for the appellant.
E. C. Sweet, and F. D. Boyce, both of Minneapolis, for the appellees.
William A. Hurt brought this action to recover damages from E. E. Stout and Alice A. Stout, husband and wife, for the breach of a covenant of warranty against encumbrances, and as the defendants prevailed, he appeals.
In an exchange of properties the defendants executed a deed to plaintiff for a large tract of land, and in his petition he alleged that the defendants covenanted that the land was clear and free of encumbrances except an indebtedness "against said property not to exceed $ 5,600 on the above real estate, encumbrance of record." He stated that it turned out that there were other encumbrances against the property, for the satisfaction of which the property had been sold by due process of law, and that the plaintiff had thereby sustained damages in the sum of $ 15,000. In their answer defendants alleged that the covenant of warranty in the deed when executed contained an exception of an indebtedness "not exceeding fourteen thousand dollars," and that after the execution and delivery of the deed, the words "fourteen thousand" were erased and the words "fifty-six hundred" substituted, and that there were added the words "on the above real estate encumbrance of record." These material alterations, it was alleged, were made without the knowledge or consent of the defendants, and with the knowledge and at the request of the plaintiff. The jury returned a verdict in favor of plaintiff, and with it answers to special questions to the effect that the instrument was changed after execution, and that the change was made in the presence of plaintiff, and at his request, and further that the defendants did not know of or authorize the change in the deed. It was further found that the total amount of the encumbrances on the property when the deed was executed was $ 10,600. Special finding number ten related to the value of the property conveyed by the plaintiff to defendants in consideration of the transfer in question, and special finding number eleven related to the ownership of a certain piece of property conveyed by the defendants to the plaintiff. The defendants asked the court to set aside findings ten and eleven, and in a separate motion asked to have a judgment rendered in their favor on the other special findings. About the same time they filed a motion for a new trial. The court sustained their motion so far as to set aside special finding number ten, and...
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Tritle v. Phillips Petroleum Co.
... ... circumstance it is immaterial that a special finding was set ... aside if those remaining warrant the judgment that was ... rendered, citing Hurt v. Stout, 105 Kan. 54, 181 P ... 623. The theory is all right, the question being whether it ... is applicable here. The allegations of the ... ...
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Burnham v. Burnham
...and these findings formed the basis of the judgment and controlled it. (Filter Co. v. Bottling Co., 89 Kan. 645, 132 P. 180; Hurst v. Stout, 105 Kan. 54, 181 P. 623; Murray v. Close, 118 Kan. 430, 234 P. Accepting these findings of fact as conclusive, what prejudicial error can be found in ......
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Southern California Edison Co. v. Hurley, 13143.
...it is clear that the law of Kansas, where this alteration took place, is the same. Johnson v. Moore, 33 Kan. 90, 5 P. 406; Hurt v. Stout, 105 Kan. 54, 181 P. 623. The general rule is that "if the legal import and effect of the instrument is changed, it does not matter how trivial the change......
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Swope v. City of Wichita
...such findings, and the defendant is entitled to a judgment." Syl. See, also, Tacha v. Railway Co., 97 Kan. 571, 155 P. 922; Hurt v. Stout, 105 Kan. 54, 181 P. 623; Musgrave v. Equitable Life Assurance Society, 124 Kan. 804, 262 P. 571. We conclude that the answers given by the jury are insu......