Samson v. Zimmerman

• Decision Date: 12 May 1906
• Docket Number: 14,598
• Citation: 73 Kan. 654,85 P. 757
• Parties: C. L. SAMSON, as Administratrix, etc., v. WILLIAM ZIMMERMAN
• Court: Kansas Supreme Court

85 P. 757

73 Kan. 654

C. L. SAMSON, as Administratrix, etc., v. WILLIAM ZIMMERMAN

No. 14,598

Supreme Court of Kansas

May 12, 1906

Decided January, 1906.

Error from Shawnee district court; ROBERT C. HEIZER, judge pro tem.

STATEMENT.

THIS action was brought by Johanna Henrietta Zimmerman, since deceased, against the defendant, William Zimmerman, in the district court of Shawnee county, to recover damages for the breach of a warranty in a deed executed by the defendant to the plaintiff in 1883, purporting to convey certain real estate in that county, with the usual covenants of warranty and for the consideration of $ 1500. The case was tried to a jury, and they returned the following verdict, omitting the title, viz.:

"We the jury impaneled and sworn in the above-entitled case, do upon our oaths find for the plaintiff, and assess her damages at fifteen hundred dollars.

J. M ORNER, Foreman."

In addition to the general verdict the court submitted the following questions, and the jury returned the following answers thereto:

"(1) Ques. At the time of the execution of the deed in controversy, was the defendant the owner of the lots on Topeka avenue? Ans. Yes.

"(2) Q. If you answer question No. 1 in the negative, then state what interest he had in the premises? A. .

"(3) Q. If anything was paid, how and with what did she pay therefor? A. We have no evidence just how or in what manner this was paid--whether in draft, check, or currency.

"(4) Q. Did William Zimmerman receive anything for this property or for making the deed? A. Yes.

"(5) Q. If yes, how much did he receive? A. Fifteen hundred and fifty dollars.

"(6) Q. How and in what manner was this received? A. We have no evidence just how or in what manner this was paid--whether in draft, check, or currency."

The jury were discharged without a motion from either party to change or correct in any way any matter appearing in the special findings. And thereafter, without a motion by either party for a new trial, the defendant filed a motion for judgment in his favor upon the special findings of the jury notwithstanding the general verdict, and the plaintiff filed a motion for judgment on the general verdict in her favor notwithstanding the special findings of fact. The court denied the motion of the plaintiff and allowed the motion of the defendant, and adjudged that the plaintiff take nothing by her action and that the defendant recover his costs. At some stage of the proceedings the plaintiff died, and the action was brought here by the administratrix of her estate to reverse the judgment.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT--Findings and Verdict--Presumption. In a trial where one special finding of the jury is apparently adverse to, and destructive of, the general verdict, if there be any material fact in issue which was not submitted to the jury for a special finding, and which if found favorably to the general verdict would support it and overcome the adverse finding, then it must be presumed that the jury determined such omitted fact in harmony with the general verdict. In other words, all the facts in issue which are not specially found should be presumed to have been determined in accordance with the general verdict.

2. CONVEYANCE--Breach of Covenant--Damages. A grantor of real estate by a deed of general warranty is responsible in damages to his grantee when a final judgment is rendered evicting the grantee from possession of the premises or awarding the title or any portion thereof to another upon any alleged right or lien antedating the conveyance, provided the grantor has proper notice to appear and defend such action, or does in fact appear therein; and this notwithstanding the judgment is based upon an erroneous finding that the grantor was not the full and free owner of the premises at the time of the conveyance. The grantor must defend according to his covenant, and if he fails in his defense it is at his own peril.

A. B. Jetmore, for plaintiff in error.

Loomis, Blair & Scandrett, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.

The case was brought here on a transcript, and of course does not include the evidence, nor the instructions to the jury; so practically the only question presented for our determination is whether the court should have rendered judgment upon the general verdict in favor of the plaintiff, or, in other words, whether the court erred in disregarding the general verdict and rendering judgment upon the special findings of fact in favor of the defendant.

It will be observed that the general verdict is in favor of the plaintiff, and all the special findings of fact are favorable to the plaintiff, unless it be No. 1. To determine whether there is an irreconcilable conflict between finding No. 1 and the general verdict we must examine the pleadings to see what were the issues. The plaintiff in her petition made the following allegations:

(1) The execution and delivery of the deed for the consideration of $ 1500 paid, a copy of which is attached to the petition and which contains a general covenant of warranty in the usual form, viz.:

"That at the delivery of these presents he is lawfully seized in his own right of an absolute and indefeasible 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 unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and encumbrances, of what nature or kind soever; and that he will warrant and forever defend the same unto said party of the second part, heirs and assigns, against said party of the first part, his heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same."

(2) "Plaintiff alleges that defendant, William Zimmerman, his heirs and executors, have not warranted and defended said described real estate with the appurtenances to the plaintiff, her heirs and assigns, against all and every person or persons whomsoever lawfully claiming or to claim the same, as he was bound to do; but on the contrary plaintiff avers that at the time of the execution and delivery of said deed the paramount title and freehold of the undivided two-thirds of said real estate was in William Opp and Philip Zimmerman; that by virtue of said paramount title the plaintiff afterward, to wit, at the September term, 1901, of the district court of Shawnee county, Kansas, in an action wherein said William Opp was plaintiff and the heirs of Philip Zimmerman, and the defendant, William Zimmerman, were defendants, the said William Zimmerman then and there appearing thereto and having full knowledge thereof, he not having good and sufficient title thereto, by the consideration of said court, plaintiff was dispossessed, and evicted out of and from the undivided two-thirds of said real estate and all the appurtenances thereof, by due course of law, and so the said defendant, William Zimmerman, his heirs and executors have not kept and performed his covenants in said deed, but have broken and made breach of the same."

(3) That plaintiff had expended $ 500 in defending said action, and had sustained damages by reason of the premises in the sum of $ 1500, ending in a prayer for judgment for $ 1800. On leave, the plaintiff afterward filed supplementary allegations and amendments to her original petition, as follow:

"Now comes the plaintiff, Johanna Henrietta Zimmerman, and by way of amendment and supplementary petition in addition to her original petition herein, says: That the defendant, William Zimmerman, with the intent to cheat and defraud the plaintiff, and in utter disregard of his covenants for title contained in said deed, did, as plaintiff has been informed and believes, induce said William Opp, as plaintiff, to institute said action in said district court and make him a codefendant; that said defendant appeared in said action and refused to protect and defend his covenant for title in said deed, as he was bound to do, but claimed to own the title and estate to and in said real estate notwithstanding said covenant for title in his said deed; that in furtherance of said fraud, and during the pendency of said action, Mary M. Zimmerman, the wife of said defendant, with the knowledge and approbation of said defendant, and in furtherance of the intention of said defendant to cheat and defraud the plaintiff, in his refusal to defend said title, on or about the 28th day of May, 1901, during the pendency of said action, with full knowledge of all the facts and to assist the defendant in cheating and defrauding the plaintiff, for a nominal consideration, procured...