The opiuion of the court was delivered by
Johnston, J.:
It is obvious from the findings and concedí d facts that Louis Hammerslough did not have the quantity and quality of title which he undertook to convey to Margaret A. Hackett in his deed of January 10, 1879. He claimed title to the land through a conveyance made to him on March 5, 1874, by Levison & Co., who it would seem obtained all the title and interest of George W. Campbell through foreclosure proceedings and a sale and conveyance made to Levison & Co. on September 29, 1873. The mortgage had been given by George W. Campbell on October 6, 1866, and it is contended that as to 160 acres of the land mortgaged by Campbell, and which was conveyed by Hammerslough, Campbell only had such a share therein as descended to him from W. R. Campbell, who was his father and the patentee of the land. Although the plaintiff in error contends that George W. Campbell was the only ehild of W. R. Campbell and his only surviving heir, there is testimony tending to show that W. R. Campbell left surviving him a widow and eight children, and there is nothing to show that there was a transfer or relinquishment of their interest to George W. Campbell. A portion of the land appears to have been sold for taxes, and on May 14, 1877, a tax deed was executed to Austin Corbin for the same; but in October of the same year Corbin reconveyed the land to Coffey county, and Hammerslough subsequently redeemed the land from the tax sale and paid the taxes which had been charged against it. After Louis Hammerslough had obtained the deed from Levison & Co., he sent the same to the register of deeds in Coffey county to be recorded, but for some reason it was not entered of record. It was mislaid or lost and was npt found until after the commencement of these proceedings. There was therefore no rec-[706] cord of title in Louis Hammerslough on January 10, 1879, when the conveyance in question was made. On March' 5, 1874, Louis Hammerslough made a conveyance of the land to Julius Hammerslough, which was in form a warranty deed, but the claim is that it was merely given as a security for a debt, and that the debt had been paid and discharged prior to the time of the conveyance to Hackett. In an effort to perfect the title Louis Hammerslough obtained from Julius, on May 24, 1880, a quitclaim deed for the land, and on February 25, 1882, a like conveyance was obtained from the widow and heirs of George W. Campbell. On July 22, Louis Hammer-slough, not being able to find the original deed from Levison & Co. to himself, procured a second deed from them, which recited the making of the former deed and that it was supposed to be lost or destroyed; and with a view to further perfect his title, he obtained from Austin Corbin, on March 25, 1886, a conveyance which intended to transfer from Corbin to Hammerslough whatever interest remained in Corbin by virtue of the tax sale of 1874. It thus appears that the title was so far defective when the Hackett conveyance was made that there was a breach of the covenants of seizin and of right to convey.
From the conclusion which we have reached, it is unnecessary to determine how far the title of Hammerslough fell short of a complete title at the time of his conveyance to Hackett. The covenants of seizin and of right to convey were broken at the time of the execution of the conveyance, and if Hackett had brought her action upon the covenants at once, and tendered a reconveyance of the same to Hammer-slough, she would have been entitled to recover the consideration paid, with interest. Instead of availing herself of this opportunity, however, she accepted the deed and the land, and by her act and the operation of law she has transferred the land to others. On February 27,1879, she, with her husband, executed a mortgage upon the land to Foreman & Freidlander, to secure the payment of a promissory note for $600, which was due March 1, 1880. The debt and mortgage were afterward assigned to Lathrop & Smith, and default being [707] made, foreclosure proceedings were begun, which resulted in a decree of foreclosure, and a sale of the premises thereunder was made to Lathrop & Smith on July 29,1881. Since that time there have been several conveyances of the land, and each transfer has been for a substantial consideration. ■
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The opiuion of the court was delivered by
Johnston, J.:
It is obvious from the findings and concedí d facts that Louis Hammerslough did not have the quantity and quality of title which he undertook to convey to Margaret A. Hackett in his deed of January 10, 1879. He claimed title to the land through a conveyance made to him on March 5, 1874, by Levison & Co., who it would seem obtained all the title and interest of George W. Campbell through foreclosure proceedings and a sale and conveyance made to Levison & Co. on September 29, 1873. The mortgage had been given by George W. Campbell on October 6, 1866, and it is contended that as to 160 acres of the land mortgaged by Campbell, and which was conveyed by Hammerslough, Campbell only had such a share therein as descended to him from W. R. Campbell, who was his father and the patentee of the land. Although the plaintiff in error contends that George W. Campbell was the only ehild of W. R. Campbell and his only surviving heir, there is testimony tending to show that W. R. Campbell left surviving him a widow and eight children, and there is nothing to show that there was a transfer or relinquishment of their interest to George W. Campbell. A portion of the land appears to have been sold for taxes, and on May 14, 1877, a tax deed was executed to Austin Corbin for the same; but in October of the same year Corbin reconveyed the land to Coffey county, and Hammerslough subsequently redeemed the land from the tax sale and paid the taxes which had been charged against it. After Louis Hammerslough had obtained the deed from Levison & Co., he sent the same to the register of deeds in Coffey county to be recorded, but for some reason it was not entered of record. It was mislaid or lost and was npt found until after the commencement of these proceedings. There was therefore no rec-[706] cord of title in Louis Hammerslough on January 10, 1879, when the conveyance in question was made. On March' 5, 1874, Louis Hammerslough made a conveyance of the land to Julius Hammerslough, which was in form a warranty deed, but the claim is that it was merely given as a security for a debt, and that the debt had been paid and discharged prior to the time of the conveyance to Hackett. In an effort to perfect the title Louis Hammerslough obtained from Julius, on May 24, 1880, a quitclaim deed for the land, and on February 25, 1882, a like conveyance was obtained from the widow and heirs of George W. Campbell. On July 22, Louis Hammer-slough, not being able to find the original deed from Levison & Co. to himself, procured a second deed from them, which recited the making of the former deed and that it was supposed to be lost or destroyed; and with a view to further perfect his title, he obtained from Austin Corbin, on March 25, 1886, a conveyance which intended to transfer from Corbin to Hammerslough whatever interest remained in Corbin by virtue of the tax sale of 1874. It thus appears that the title was so far defective when the Hackett conveyance was made that there was a breach of the covenants of seizin and of right to convey.
From the conclusion which we have reached, it is unnecessary to determine how far the title of Hammerslough fell short of a complete title at the time of his conveyance to Hackett. The covenants of seizin and of right to convey were broken at the time of the execution of the conveyance, and if Hackett had brought her action upon the covenants at once, and tendered a reconveyance of the same to Hammer-slough, she would have been entitled to recover the consideration paid, with interest. Instead of availing herself of this opportunity, however, she accepted the deed and the land, and by her act and the operation of law she has transferred the land to others. On February 27,1879, she, with her husband, executed a mortgage upon the land to Foreman & Freidlander, to secure the payment of a promissory note for $600, which was due March 1, 1880. The debt and mortgage were afterward assigned to Lathrop & Smith, and default being [707] made, foreclosure proceedings were begun, which resulted in a decree of foreclosure, and a sale of the premises thereunder was made to Lathrop & Smith on July 29,1881. Since that time there have been several conveyances of the land, and each transfer has been for a substantial consideration. ■
covenants of foiZb"eaoii-on damages. It is true that the defendant in error insists that the foreclosure proceedings are not sufficiently valid to make them effective, but upon this question she is concluded by the finding of the court that there was a foreclosure and a sale. No-cross-petition in error has been filed by her, and therefore she-is in no position to complain or to secure a modification of the finding. The defect asserted relates to insufficiency of notice,, but it satisfactorily appears that there is nothing substantial in the objection, as the defect has been remedied. (Hammerslough v. Hackett, 30 Kas. 57; Lathrop v. Hackett, 36 id. 661.)' She has been wholly divested of title, and Lathrop & Smith and the subsequent grantees not only acquired all the title that was then in her, but which might inure to her by reason of the covenants in the conveyance which she received from Hammerslough. The conveyance to her contained all the usual covenants including warranty of title running to her heirs and assigns. Her alienees are entitled to the benefits of the covenants for title which run with the land, and they will take the subsequently acquired title of her grantors by inurement. (Gen. Stat. of 1889, ¶ 1114.) When she parted with all her interest in the land she had no longer any right or control over the covenants which ran with it, anc¡ thereafter had no right to recover more than nominal damages for the technical breach of the covenants of seizin and of right to convey. During her ownership there was no adverse possession of the land nor any hostile assertion of paramount title in another. She suffered no actual loss, and the parties who claimed through her it appears have not been disturbed in their possession or ownership by any adverse claimant. With a view of recovering substantial damages, she tendered in her reply a reconveyance to Hammerslough, but this was wholly ineffectual, as the title or right to the benefit [708] of the covenants had passed from her and had vested in her assigns. Lathrop & Smith, who purchased at the sheriff’s sale, and their grantees, are at liberty to take advantage of the covenants for title whenever a breach occurs, to the extent of the actual loss sustained. The sheriff’s deed conveyed to them as full and complete a title to the land as she could have given at any time after it became liable to the judgment, and fully conferred on them the benefit of the covenants for title. (Civil Code, §459; Rawle, Cov. Tit. 213.) That she is entitled to no more than nominal damages has practically been determined by this court in Scoffins v. Grandstaff, 12 Kas. 467. It was there declared that where personal covenants are connected with the sweeping covenant of warranty, and the covenant of seizin is broken, but the grantee has parted with the property, and has never been disturbed in his ownership nor paid anything in purchasing in the paramount title, nor became liable to pay anything, he can at most recover only nominal damages from the grantor for the breach of the covenant of seizin. (See also Morrison v. Underwood, 20 N. H. 369; Baxter v. Bradbury, 20 Me. 260; Kimball v. Bryant, 25 Minn. 496; Burke v. Beveridge, 15 id. 205; King v. Gilson, 32 Ill. 349; Brandt v. Foster, 5 Iowa, 287; Prescott v. Trueman, 4 Mass. 627; College v. Cheney, 1 Vt. 340; Garfield v. Williams, 2 id. 327; Reese v. Smith, 12 Mo. 344; Wilson v. Forbes, 2 Dev. 30; McCarty v. Leggett, 3 Hill, 134; Colby v. Osgood, 29 Barb. 339; Boon v. McHenry, 55 Iowa, 202; Rawle, Cov. Tit., §§179, 180, 215, 220, 248; Tied., Real Prop., §851; Devl., Deeds, § 894.)
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.