Walton v. Campbell

• Decision Date: 03 June 1897
• Citation: Walton v. Campbell, 51 Neb. 788, 71 N. W. 737 (Neb. 1897)
• Parties: WALTON v. CAMPBELL.
• Court: Nebraska Supreme Court

51 Neb. 788

71 N.W. 737

WALTON

v.CAMPBELL.

Supreme Court of Nebraska.

June 3, 1897.

Syllabus by the Court.

1.From the mere fact that there was filed in the district court a copy of a petition, and an answer entitled in the county court, and indorsed as therein filed, it will not be assumed that there was a judgment in or an appeal from such county court.

2.In an action for breaches of covenants of warranty in a deed for the conveyance of real property, while there may be a recovery for costs and attorney's fees incurred, but not paid, in making a defense against an action hostile to the title purported to be conveyed by the warranty deed, this principle should not be extended to cover interest on such attorney's fees and costs, under the proofs made in this case.

3.Where a cause has been tried in the district court on the theory that an averment of eviction under a title paramount has been sufficiently established by proof of a yielding to such asserted title by purchase of the adversary interest, this court, while it may accept that theory, will not extend its operation so as to countenance an assumption that the yielding was earlier than the date of the quitclaim deed obtained by purchase of the paramount title.

4.Covenants of warranty not broken when made pass with the title, unaffected by the fact that the conveyances are by quitclaim deed.

Error to district court, Lancaster county; Tibbets, Judge.

Action by Sarah E. Campbell against Thomas Walton for a breach of covenant of warranty.From a judgment for plaintiff, defendant brings error.Affirmed on condition of remittitur.Ricketts & Wilson, for plaintiff in error.

Pound & Burr, for defendant in error.

RYAN, C.

In the record of this casewe find a copy of a petition and of an answer which purport to have been filed in the county court as well as in the district court of Lancaster county.In the caption of each of these pleadings there occur the words, “In the County Court of Lancaster County, Nebraska.”There is nothing to show that there ever was a judgment in the aforesaid county court, with respect to the issues presented by said pleadings; neither does it appear that the case tried in the district court, sought to be reviewed in this court, was a continuation of, or in any way connected with, an action in the county court.We shall therefore ignore the arguments presented with reference to the alleged want of jurisdiction of the county court, and the alleged departure in the district court from the issues claimed to have been tried in the county court.By her amended petition filed in the aforesaid district court, Sarah E. Campbell alleged that on November 6, 1876, Thomas and Martha Walton, in consideration of the payment of $200, had conveyed lot 12, block 32, in Dawson's addition, in the city of Lincoln, to R. J. Campbell.The covenants of warranty contained in the deed whereby said conveyance was made were in the ordinary form, as set out in the petition; and the breach of these covenants was the cause of action stated.We shall hereinafter describe specifically such matters as, in the course of this discussion, shall require a specific statement.For the present it is sufficient to say the answer contained a general denial, and that, by a reply, the affirmative averments of the answer were traversed.There were a verdict and judgment as prayed in the petition.

There was an averment in the answer that the defendant in error lost her title, if she did lose it, by reason of her negligent failure to make a proper defense in an action wherein her grantor was a defendant.There is found no evidence upon which this negligence could be predicated, for the proof of this matter was excluded, and the ruling in this respect is not called in question by the petition in error.Another paragraph of the answer was as follows: “And these defendants, for a further and fourth defense, say that they were never notified that plaintiff's title to said lot was questioned or attacked, and had no notice of the pendency of any suit against the same.”Until after the filing of this answer there had been mentioned both Thomas Walton and his wife, hence the pleadings up to that time referred to two defendants; thenceforward there seems to have been but one defendant, Mr. Walton.It is not shown why this was, but, as no importance seems to be attached to this circumstance, it will not be noted further than to explain the use of the word “defendants,” which occurs in the above quotation.The proofs were addressed only to facts with which Mr. Walton was connected, and were to this effect: R. J. Campbell testified that the action against himself and the defendant in error was brought by Frank M. Miles in 1877 or 1878, as he thought; that, whenever he met Walton on the street, he talked with Walton about it; that Walton contended that they could not beat witness out of it; that witness told Walton witness was not fretting about it, because, if witness lost the title, he considered he had a good man to go back to, and that, if witness lost the property, he expected to go back on Walton; that Walton said that, if witness went back on him for the purchase money, witness ought to transfer the title to Walton; that Walton talked this in the house of witness, and, as he himself said, came there to talk that matter over.This witness said he was safe in saying he talked 50 times with Walton about this lawsuit while it was going on.Sarah E. Campbell, the defendant in error, testified that, during the time that the suit was pending in the United States circuit court, Mr. Walton was at the home of defendant in error, and that it was talked that, if the property was lost, Walton ought to have the title transferred back to him.Mrs. Campbell, in this connection, testified that Mr. Walton said: “If the Burrs had anything to do with it, let it go.”She further testified that the theme of the conversation was: “If we had no title, how could we make any title back?How could I give one?”It is not just clear what Burrs were meant by the reference used in connection with that name by Mr. Walton.L. C. Burr was alleged in the pleadings in the federal court to be a party interested in the suit, as well as one of the attorneys of Mr. Miles.In this action the jury may have assumed that, as Mr. Burr was interested adversely to the title which Mr. Walton had covenanted to defend, it was to him that Mr. Walton alluded.The evidence was not therefore of casual...