Walker v. Kirshner

• Decision Date: 01 October 1895
• Docket Number: 27
• Citation: 2 Kan.App. 371,42 P. 596
• Parties: WILLIAM WALKER v. C. H. KIRSHNER et al
• Court: Kansas Court of Appeals

42 P. 596

2 Kan.App. 371

WILLIAM WALKER v. C. H. KIRSHNER et al

No. 27

Court of Appeals of Kansas, Northern Department, Central Division

October 1, 1895

Opinion Filed November 11, 1895.

MEMORANDUM.--Error from Saline district court; R. F THOMPSON, judge. Action by C. H. Kirshner and E. W. Blair assignees of J. A. Fisher, against The Union Pacific Railway Company and others. Judgment against the defendant William Walker, who brings the case here. Reversed. The opinion herein was filed November 11, 1895.

Judgment reversed and case remanded.

R. A. Lovitt, for plaintiff in error.

C. H. Kirshner, and E. W. Blair, defendants in error, for themselves.

GILKESON P. J. All the Judges concurring.

OPINION

GILKESON, P. J.:

This was an action brought by C. H. Kirshner and E. W. Blair, assignees of one J. A. Fisher, plaintiffs, against The Union Pacific Railway Company, William Walker, and Ann Walker, defendants, in the district court of Saline county, Kansas, upon alleged breach of covenants of warranty. Trial had before court and jury; general verdict and special findings returned by jury; judgment rendered thereon against the defendant William Walker for the sum of $ 399 and costs. William Walker brings the case here for review upon petition in error and case-made.

The petition in the court below sets forth: On December 17, 1881, the Union Pacific Railway Company, in consideration of the sum of $ 198.78, conveyed to William Walker by deed of general warranty the following tract of land: The southeast quarter of the southwest quarter of section 9, township 14 south, of range 1 west, containing 40 acres; that on August 18, 1883, William Walker and wife, in consideration of the sum of $ 555, conveyed the same land by deed of general warranty to one J. A. Fisher; that on September 17, 1884, Jesse A. Fisher and wife, in consideration of the sum of $ 900, conveyed the same land by deed of general warranty to one William A. Martin; that on March 23, 1888, William A. Martin and wife, in consideration of the sum of $ 900, conveyed the same land by deed of general warranty to one J. A. Fisher; that on the 16th day of November, 1888, the said Jesse A. Fisher was ousted and dispossessed from all of said land and tenements by a paramount title in the government of the United States, and that by virtue of a certain assignment, to wit: "For value received, we hereby sell, assign and transfer unto C. H. Kirshner and E. W. Blair all my interest, right, title, demand, claim and cause of action against the Union Pacific Railway Company and William Walker and Ann Walker for breach of covenants of warranty in the sale and conveyance to me of the southeast quarter of the southwest quarter of section 9, township 14 south, of range I west, in Saline county, Kansas, (signed) J. A. FISHER," the said Kirshner and Blair became entitled to all the rights of the said Jesse A. Fisher, and pray judgment against the said defendants, the Union Pacific Railway Company and William Walker and Ann Walker, jointly, for the sum of $ 1,000. The record discloses that after the action was commenced a judgment was recovered against the Union Pacific Railway Company, on the 17th of June, 1890, in the sum of $ 236, in favor of Kirshner and Blair, which was paid by the company to Kirshner and Blair, and was received by them in full satisfaction of the claim against the company.

In an action by the grantee to recover damages for the breach of covenant contained in a deed, and the plaintiff claims to have yielded possession to a paramount title, it is incumbent upon him to show by sufficient evidence not only that he yielded the possession of the property to what he supposed to be a paramount title, but that such title was, in fact, paramount to the title of any one else to such property. (Sheetz v. Longlois, 69 Ind. 491; Clark v. Mumford, 62 Tex. 531.)

In this case the petition alleged that the defendants covenanted in and by their deed that they were lawfully seized of the property; that the same was free and clear of all incumbrances; that they guaranteed the quiet and peaceable possession thereof, and that they would warrant and defend the title thereto against all lawful claims, etc.; that the defendants, at the time they executed their said deeds, did not have a good and sufficient title to said premises, but that the paramount title to said land was at that time in the United States government; that by virtue of said paramount title the said Fisher was evicted, on or about November 16, 1888. These are material allegations; yet there is no evidence in the record that tended to sustain them. Fisher's testimony was twice taken in this action, but if he had ever been ousted and evicted from the possession of this property, or if he yielded possession to what he supposed to be a paramount title, he failed to testify to any such fact. His testimony on this point is:

"Ques. You say you took possession of the 40 acres after the purchase: how long did you continue in possession of the 40 acres above described? Ans. I had...