Smith v. Davis
Decision Date | 01 July 1890 |
Citation | 24 P. 428,44 Kan. 362 |
Parties | H. D. SMITH v. JOHN E. DAVIS et al |
Court | Kansas Supreme Court |
Error from Bourbon District Court.
THE facts are sufficiently stated in the opinion.
Judgment reversed and cause remanded.
West & Humphrey, for plaintiff in error.
Dillard & Padgett, for defendants in error.
OPINION
This was an action brought in the district court of Bourbon county on November 4, 1887, by H. D. Smith against John E. Davis and Margaret L. Davis, husband and wife, to recover for an alleged breach of covenants contained in a deed of conveyance of real estate executed by the defendants to the plaintiff. The plaintiff's petition alleges and sets forth among other things that the deed contained the following covenants, to wit:
"And the said parties of the first part do hereby covenant and agree that at the delivery hereof they are the lawful owners of the premises above granted, and seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances, and that they will warrant and defend the same in the quiet and peaceable possession of the said party of the second part, his heirs and assigns forever, against all persons lawfully claiming the same."
A copy of the deed is also given as a part of the petition. The alleged breach of the covenants and the prayer for relief as set forth in plaintiff's petition read as follows:
A copy of the lease is also given as a part of the petition. The lease was dated September 17, 1884. The defendant, J. E. Davis, was the party of the first part, and M. D. Hartman & Co. constituted the party or parties of the second part. The ice was to be cut and obtained from the Marmaton river where it runs across the land conveyed by the defendants to the plaintiff. The lease contained the following, among other things, to wit:
The defendants demurred to the plaintiff's petition, which demurrer was overruled; and they then answered, and the plaintiff replied. Afterward the case was regularly called for trial, and the record with reference to this subject and subsequent proceedings reads as follows:
"Which said verdict said jury thereupon signed by its foreman, and returned it into court.
. . . .
The plaintiff then moved the court to set aside the foregoing verdict, and to grant a new trial upon various grounds, but the court overruled the motion, and the plaintiff excepted and afterward, as plaintiff in error,...
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