Zuspann v. Roy

• Decision Date: 12 January 1918
• Docket Number: 20,970
• Citation: 102 Kan. 188,170 P. 387
• Parties: ALBERT ZUSPANN and R. B. ZUSPANN, Appellants, v. MOSES A. ROY and ELIZABETH E. ROY, Appellees
• Court: Kansas Supreme Court

170 P. 387

102 Kan. 188

ALBERT ZUSPANN and R. B. ZUSPANN, Appellants, v. MOSES A. ROY and ELIZABETH E. ROY, Appellees

No. 20,970

Supreme Court of Kansas

January 12, 1918

Decided January, 1918.

Appeal from Sherman district court; CHARLES I. SPARKS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEED--Breach of Warranty against Encumbrances--Mutual Mistake in Deed--Presumptions--Instructions. In an action for damages caused by a breach of a warranty against encumbrances contained in a warranty deed, where the defense is that the deed does not express the contract of the parties, that the warranty against encumbrances was inserted in the deed by the mutual mistake of the parties thereto, and that the contract was that the grantee in the deed should assume and pay the encumbrances, it is not error for the court to instruct the jury that the deed is presumed to contain the whole of the contract, but that this presumption may be overcome by evidence which incontrovertibly establishes that a covenant to assume and pay the encumbrances was omitted by mistake, and that the mistake was the mutual mistake of both the parties to the deed.

2. SAME--Instructions. In such an action, it is not prejudicial error for the court to fail to instruct the jury that the execution of the deed and the existence of the encumbrances are admitted, where it conclusively appears that neither of these facts was questioned during the trial.

3. SAME--Deed--Mutual Mistake May be Shown. A mutual mistake in a deed conveying real property may be shown, although the parties thereto did not, before it was signed, carefully examine it to ascertain whether it expressed their agreement.

4. SAME--Mutual Mistake Defined. A mutual mistake in a written contract is one that is made by all the parties thereto.

5. TRIAL--Instructions Construed as a Whole. If instructions, where considered together, do not appear to be erroneous, a judgment based thereon will not be reversed.

John Hartzler, of Goodland, for the appellants.

E. F. Murphy, of Goodland, for the appellees.

OPINION

MARSHALL, J.:

In this action the plaintiffs seek to recover judgment for damages caused by the breach of a warranty against encumbrances, and for damages caused by false and fraudulent representations made concerning a well on real property received by the plaintiffs in exchange for other property conveyed by them to the defendants. Judgment was rendered in favor of the defendants, and the plaintiffs appeal.

The petition alleged that the plaintiffs exchanged land in Barry county, Missouri, with the defendants, for real property in Sherman county, Kansas. The petition set out two causes of action. In the first cause of action, the petition alleged that included in the real property in Sherman county were three lots with a house thereon in Goodland; that the defendants, in the deed conveying the Sherman county real property to the plaintiffs, warranted that the premises were free and clear of encumbrances; that the lots in Goodland were encumbered by a mortgage to secure the payment of $ 500 and interest; that the plaintiffs, to protect their title to the lots, were compelled to purchase the note and mortgage; and that they were damaged in the sum of $ 558. In the second cause of action, the petition alleged that a certain half section of real property conveyed to the plaintiffs was improved; that--

"The plaintiff, Albert Zuspann, made an examination of such premises in company with defendant, Moses A. Roy; that at such time such defendant represented, pointing to a well and windmill tower on such premises, that if a wheel was placed on such tower, and connection made with the pump that was all that was needed and that the well would furnish ample and sufficient water for all ordinary purposes on such farm;"

that these representations were false; that the plaintiffs believed them to be true and relied on them; and that they were thereby induced to make the exchange of lands.

The material parts of the answer were a general denial and allegations that the real property owned and exchanged by the plaintiffs was encumbered by mortgages; that a part of the real property owned and exchanged by the defendants was likewise encumbered by mortgages; that the lots in Goodland were encumbered by a mortgage for $ 500; that it had been agreed that each of the parties would assume and pay the encumbrances on the real property received by him in the exchange; that the deed from the defendants to the plaintiffs did not describe nor mention the mortgages on the Sherman county land; and that--

"By oversight, error, mistake and omission the reservations as to encumbrances on that part of said real property as was at the time encumbered by mortgage were left out of said deed, but that said plaintiffs, their agents and persons acting for them at all times understood that said lands were to be conveyed subject to said encumbrances and all of them."

1. The sixth instruction to the jury was as follows:

"You are further instructed that it is the presumption of law that the deed for the lots hereinbefore referred to contained the agreement of the parties thereto concerning said conveyance and all of the agreement. This presumption may be overcome by the party asserting that the deed does not contain all of the agreement but the burden of proving such is upon the party making such assertion. So in this case the evidence must establish incontrovertibly that the mistake alleged was common to both parties, in other words, that both parties understood the contract as it is alleged it ought to have been expressed and as in fact it was but for the mistake alleged in reducing it to writing and the failure to insert the reservation as to the assumption of the mortgage."

Two complaints are made of this instruction. One is of the first two sentences of the instruction; the other is of the last sentence. The instruction cannot be properly...