O'Meara v. McDaniel

The opinion of the court was delivered by Valentine J.: This was an action commenced in the district court of Meade county, on February 9, 1889, by Edgar McDaniel against M. J. O’Meara and M. H. Ewart, for damages for alleged breaches of certain covenants contained in a deed of conveyance of real estate executed by the defendants to the plaintiff on March 24,1887. The covenants contained in the deed are as follows: “ That at the delivery of these presents they are lawfully seized in their own right of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above-granted and described premises, with the appurtenances; that the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances, of what nature and kind soever; and that they will warrant and forever defend the same unto the said party of the second part, his heirs and assigns, against said parties of the first part, their heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.” The supposed breaches of these covenants are alleged in the petition, as follows : “ That at the time of the execution and delivery of said deed, the defendants were not the true and lawful owners of said premises, nor were they lawfully seized in their own right of a good, absolute and indefeasible estate of inheritance in fee simple to said premises, nor had they good right, full power and lawful authority to grant, bargain, sell and convey ■the same, in manner and form asserted and set forth, and adopted in said deed.” The defendants answered to the plaintiff’s petition, alleging, among other things, as follows: “That the plaintiff, ever since the 24th day of March, [689] 1887, was and now is in the quiet and peaceable possession of said lot No. 14, in block No. 8, of the original survey of the city of Meade Centre, Meade county, Kansas, and the improvements thereon, to wit, a certain habitable dwelling and business house, and used, collected, enjoyed, and converted to his own use, and is now using, collecting, enjoying, and converting to his own use, the rents, issues and profits of the aforementioned premises, to the amount of $500.” To this answer the plaintiff filed a paper entitled “ Motion, demurrer, and reply.” By it the plaintiff moved to strike out a portion of the defendants’ answer, replied to another portion thereof, and demurred to still another portion thereof, to wit, to that portion above quoted, upon the ground that it did not state facts sufficient to constitute any defense to the plaintiff’s action. The court below sustained that part of the paper filed called a “motion,” and also that part called a udemurrer;” and a trial was had before the court and a jury upon the remainder of the pleadings. At the trial, the court again sustained the theory upon which it had previously sustained the plaintiff’s so-called demurrer to the defendants’ answer, by refusing to permit the defendants to show that the plaintiff was in the possession of the property in question and receiving and enjoying the rents and profits thereof. Judgment was rendered in favor of the plaintiff and against the defendants for $2,104.50. This included $1,800, the alleged consideration for the land in question, and $304.50 as interest. To reverse this judgment, the defendants, as plaintiffs in error, have brought the case to this court. The judgment of the court below in this case must be reversed. As the plaintiff was in the quiet and peaceable possession of the property, enjoying and collecting the rents and profits thereof to the amount of $500 at least, he should not have recovered from the defendants the amount of the consideration for the land, with interest. (Stebbins v. Wolf, 33 Kas. 765; Danforth v. Smith, 41 id. 146.) And as the plaintiff has never been evicted from the premises, and has never paid anything to remove an incumbrance therefrom, or to perfect his [690] title, but is still in the quiet and peaceable possession of the property, enjoying and collecting the rents and profits thereof, he can recover at most only nominal damages; and this upon whatever covenant the action may be considered as having been commenced. (Hammerslough v. Hackett, 48 Kas. 700; same case, 29 Pac. Rep. 1079, and cases there cited.) It is claimed by the plaintiffs in error, defendants below, that the foregoing were not the only errors committed. It is claimed by them that a paper was permitted to be introduced in evidence as a transcript of a judgment, without any sufficient foundation having been laid for its introduction; and we cannot say that this claim is not true. This paper was introduced for the purpose of showing that the defendants below did not have any title to the property in question; but it does not show that the defendants were parties to the action in which the supposed judgment was rendered, nor that they ever had any notice of the action, or that the action had ever been defended by the plaintiff or by any person in good faith. The judgment of the court below will be reversed, and. the cause remanded for a new trial. All the Justices concurring.