Kane v. Rippy

• Decision Date: 01 May 1890
• Citation: 23 P. 180,22 Or. 296
• Parties: KANE v. RIPPY et al.
• Court: Oregon Supreme Court

23 P. 180

22 Or. 296

KANE v. RIPPY et al.

Supreme Court of Oregon

May 1, 1890

Appeal from circuit court, Jackson county; L.R. WEBSTER, Judge.

(Syllabus by the Court.)

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.

. It may be admissible as evidence, not for the purpose of proving title, but to show that the abstract furnished to show title did not disclose such evidence of title as the defendants had agreed to convey by their contract.

H.K Hanna, for appellant.

C.W Kahler and A.S. Hammond, for respondent.

LORD J.

This is an action to recover money paid on a contract for the sale of land. It arose out of substantially these facts: That the defendants agreed with plaintiff, in writing, to convey to him, "in fee-simple, clear of all incumbrances whatsoever, by a good and sufficient deed and abstract of title, the following parcel of land," etc.; that at the execution of said agreement the plaintiff paid to the defendants the sum of $500, as provided therein, and as the first payment on said land, and that prior to bringing this action the plaintiff tendered the further sum of $3,000 as a second payment, and was ready and willing to perform his covenants and agreements, etc., and that he then and there demanded of said defendants that they execute and deliver to him a deed of land, etc., and that the defendants refused to execute the same; that the title to said land is defective and that they cannot execute or deliver a clear title, etc., and make him a good and sufficient deed and abstract of title therefor; and that the defendants have not repaid any part of the sum of $500 to them paid as a part of the purchase price, etc. The material facts were put in issue; and, after the plaintiff had introduced his evidence and rested, the defendants moved for a nonsuit, which was granted by the court, and judgment entered for the defendants. Two causes of error are assigned: (1) That the court erred in refusing to allow the plaintiff to introduce in evidence the abstract of title furnished plaintiff by the defendants; and (2) in taking the cause from the consideration of the jury, and rendering a judgment of nonsuit in favor of the defendants.

It is disclosed by the bill of exceptions that, when the plaintiff offered in evidence the abstract of title, the court refused to admit it on the ground, as it would seem, that it was not the proper evidence of title, but that the records or original conveyances were the only legal proof admissible of title. The court evidently regarded the action as one in which the validity of the title, and its proper proof, was involved, as it is only upon this theory that the ruling of the court below can be sustained. The difficulty arises out of the somewhat involved manner in which the facts...