Jones v. Jones

• Decision Date: 01 March 1888
• Citation: 7 S.W. 886,87 Ky. 82
• Parties: JONES et al. v. JONES.
• Court: Kentucky Court of Appeals

7 S.W. 886

87 Ky. 82

JONES et al. v. JONES.

Court of Appeals of Kentucky.

March, 1888

Appeal from circuit court, Bath county.

Action by D. R. Jones, the appellee, against J. T. Jones and others appellants, to recover for breach of warranty of title to land sold by James R. Jones, the common ancestor of plaintiff and defendants. Defendants denied their liability on the covenant, alleging-- First, that, at the time of the sale of the land, their ancestor did not have sufficient mental capacity to execute the deed with covenant; and second, that plaintiff was indebted to their ancestor's estate in a large sum. Judgment for plaintiff and defendants appeal. Plaintiff also took a cross-appeal for the reason stated in the opinion.

Henry L. Stone and J. S. Hurt, for appellants.

W. H. Holt and V. B. Young, for appellee.

PRYOR C.J.

This is an action involving an alleged breach of warranty by the ancestor of the appellants and of the appellee in the sale and conveyance of a tract of land, in the county of Bath, to the appellee. The case was heard on the equity side of the docket, and a judgment rendered against the appellants, to be levied on assets descended, and from which they prosecute this appeal. There was a covenant of general warranty contained in the deed, for the breach of which the action was instituted. The appellants filed a general demurrer to the petition, that was overruled, and this is the first error complained of.

It is alleged by the appellee, after reciting the deed or the covenant, that Tyding's heirs, by an action in the Bath circuit court, recovered judgment against the plaintiff for seven-ninths of the land conveyed by the deed, and by reason thereof the covenant of warranty had been broken to the extent of seven-ninths of said tract, and the plaintiff ousted of possession, under the judgment, on the ----- day of -----. Therefore he sues for the recovery of $6,826, with interest, etc.; the title to said land, so conveyed to him having failed to that extent. The objection urged to the petition is that the plaintiff fails to allege that the recovery was by a paramount title, or by one having the lawful title; while the appellee maintains the statement that the title of his vendor failed to the extent of seven-ninths of the land is equivalent to saying that the party evicting him had the superior title. The want of title in the vendor of the appellee is no evidence of title in the party evicting him. This title may have been defective, and still the title of the party suing him equally so, or the party evicting may have entered under the appellee, or the latter permitted a recovery when he could have defeated the claimant. We understand the rule to be that, where there is a breach of the warranty of title, the vendee, to recover of his vendor, must allege and prove that the eviction was by one having the lawful title, or a title paramount to that derived by the vendee from his vendor. This is indispensable to a recovery for the breach, unless the vendee has given notice to his vendor of the adverse claim, and the pendency of the action, calling upon him to defend the title as he has agreed to do. When such a notice is given and averred, it dispenses with the further averment of a recovery by a better title. An allegation of a defective title in the vendor, with his vendee in possession, or the want of title to the land, will not authorize the vendee to sue until he is evicted by a paramount title. What is necessary to be alleged, is required to be proven, and the court will not imply a better title in the party recovering than that of the one in possession, upon the naked...