Towels v. Campbell

• Decision Date: 30 September 1924
• Citation: 264 S.W. 1107,204 Ky. 591
• Parties: TOWELS ET AL. v. CAMPBELL ET AL.
• Court: Kentucky Court of Appeals

264 S.W. 1107

204 Ky. 591

TOWELS ET AL. v. CAMPBELL ET AL.

Court of Appeals of Kentucky.

September 30, 1924

Appeal from Circuit Court, Scott County.

Action by B. G. Towels and others against Jesse Campbell and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Bradley & Bradley, of Georgetown, and J. W. Cammack, of Owenton, for appellants.

Ford &amp Ford, of Georgetown, for appellees.

SAMPSON C.J.

In 1918, appellant Towels bought of appellee Campbell a tract of 190 acres of land at the price of $12,000, of which sum $8,500 was paid in cash and the balance was represented by a lien note. Soon thereafter Towels took possession of the land and occupied it as a home. He made valuable improvements thereon and continued to use and occupy the place until May 1922, when he commenced this action against Campbell for a cancellation of the deed and of the outstanding purchase-money note for $3,500, and praying that appellee Campbell be ordered to repay to the appellants several different sums of money paid as a part of the purchase price of land, with interest thereon, and the further sum of $5,000 damages.

Appellant was not evicted from the land and is now, so far as the record shows, in possession thereof holding and enjoying the same. Neither does the petition aver that appellee Campbell is insolvent or a nonresident of the state of Kentucky, or any of the grounds which justify a rescission of such contract, unless the following averment amounts to that:

"He says that in addition to the 'general warranty' of title contained in said deed, before and at the time of the execution and delivery of same, and for the purpose of inducing this plaintiff to accept said deed and pay the consideration therefor, the defendant represented to the plaintiff and assured plaintiff that the title to the said tract of land and all of same was a good fee-simple title and that he, the defendant, owned a good fee-simple title therein, and represented and assured this plaintiff that he knew personally that the title which he had in said land was a good fee-simple title, and relying on said representation and assurance on the part of said defendant, and believing same to be true, the plaintiff did accept said deed, and pay the consideration therefor, when in truth and in fact said title was not good, was not a fee simple, but was defective as hereinafter set out, and he says that but for such representations and assurances on the part of the defendant which were untrue, plaintiff would not have accepted said deed or have paid said consideration or have placed improvements on said land as above set out.

Plaintiff says that, as stated above, the title of the said defendant to said land at the date of said deed and now was and is defective and not a fee-simple title, said defect being as follows: Defendant Jesse Campbell obtained title thereto from John Payne and William Payne by deed of date 21st day of February, 1914, and recorded in Book 43, p 580, in the office of the Scott county clerk, copy of which deed is filed herewith. He says that previous to the date of said conveyance from the said Payne to the defendant Campbell, John Payne by deed of date the 3d day of January, 1913, and recorded in Deed Book 43, p. 294, in the Scott county clerk's office conveyed said tract of land to Mrs. Carrie Payne Cantrill, deeding her his undivided one-half interest upon the following trust: 'That she should reconvey same to John Payne for life with remainder to his children if any, but if he should die without leaving children then to William Payne his brother for life with remainder to his children, if any, and if he should die without leaving children then to the children of Mrs. Carrie Payne.' He further says that carrying out said trust Mrs. Cantrill and her husband J. C. Cantrill did reconvey said property to the said John Payne for life with remainders over as above set out, said deed being also of date 3d of January, 1913, and recorded in Deed Book 43, p. 295. Copies of both this deed and the one from Payne to Cantrill are filed herewith.

Plaintiff says that John Payne, the grantor, of the defendant, by reason of the aforesaid deeds, at the time he made the deed to defendant had only a life estate in an undivided one-half of the entire tract, and that by the conveyance from the said two Paynes to the said Campbell he only obtained a fee simple in one-half of said land and an estate for the life of John Payne in the other undivided one-half, with remainders in this one-half in the various remaindermen as set out in said deed; and he says that by the deed from the defendant herein to this plaintiff this plaintiff only receives the same interest in said land and not a fee-simple title therein as warranted and as represented."

The trial court sustained the general demurrer to the petition of appellant with leave to amend, thereupon appellant filed an amended petition wherein he averred in substance that he had tried to sell the tract of land, but, owing to the defect in the title set up in his original petition, no one would purchase the same, and further alleged he had attempted to obtain a loan from the Federal Loan Bank on the land, but this was refused because of defective title. The demurrer was then interposed to the petition as amended and again sustained. The appellant declined to further plead and his petition was dismissed, and he appeals.

It is a well-settled principle that a vendee of land by conveyance containing a covenant of general warranty has no recourse against the vendor until there has been an eviction by paramount title, or the vendor is insolvent or a nonresident. Walker v. Robinson, 163 Ky. 618, 174 S.W. 503; Hunter v. Keightley et al., 184 Ky. 835, 213 S.W. 201. This rule has been recognized by this court in a long line of cases.

"In order to constitute a breach of covenant of warranty the title or right to which a covenant yields must be, not only paramount to his own, but also paramount to that of anyone else; and the paramount title must have been in existence at the date the warranty was made.

"To constitute a breach of warranty there must be an eviction or equivalent disturbance by title paramount unless there was an entire want of title in the grantor 'or unless he had only an equitable title with right to legal title.' " 15 C.J. 1287; Walker v. Robinson, 163 Ky 618, 174 S.W. 503; Grant v. McArthur, 153 Ky. 356, 155 S.W. 732; Simpson v. Hawkins, 1 Dana, 303; Fowler v. Chiles, 4 J. J. Marsh. 504; Booker v. Meriwether, 4 Litt. 212; Arnold v. Maiden, 10 Ky. Op....