Lane v. Woodruff

40 P. 1079, 1 Kan. App. 241, 1895 Kan. App. LEXIS 142

• Court: Court of Appeals of Kansas
• Decided: July 16, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Dennison, J. :

The question to be decided in this case is, whether or not the covenants in the deed given by the Woodruffs to Lane are such covenants as can be recovered upon by said. Lane, after having mortgaged the land to Angelí Matthewson & Co., and after having deeded the land to said Kennedy subject to the $900 mortgage, and after having paid Angelí Matthewson & Oo. the said $900 and interest. A mortgage of real estate in this state passes no title to or interest in the land, but simply creates a lien upon it. The mortgage given to Angelí Matthewson & Co. was a lien upon whatever interest or estate Lane had in the land. After having given the mortgage, Lane could only-deed the land subject to the lien created by said mortgage, and Kennedy could only fake, under the deed, such interest as Lane might have had in the premises at the date of the deed, which was supposed to be the fee title, subject to the lien of said mortgage. A lien hpon whatever right, title, interest or estate Lane had in said land passed to the mortgagee, and the mortgage carried with it a lien upon said estate, and the covenants being a part of said estate and running with the land, said Angelí Matthewson & Co. were entitled to recover upon said covenants. The said Kennedy, not having paid the full purchase-price of said land but having retained $900 Avitli which to pay said mortgage, is not entitled to all the benefits of the covenants running Avith said land until he has performed his full contract and paid the full purchase-price. Not having paid the $900, he is not entitled to all the benefits of the covenants until after said $900 has been fully paid; and these defendants, having settled with the said Kennedy for all damages to them, only settled for what interest he may have had in said lands or said covenants. This plaintiff, haAÚng paid the $900 and the interest thereon to said Angelí Matthewson & Co., is entitled' to recover under said covenants the damages she sustained by reason of having to pay the said $900 and interest. In this case, the amount for which these defendants Avere liable, upon a breach of their covenants, was the purchase-price which they received from this plaintiff. The petition alleges that that amount was $2,000. It also alleges that Kennedy-paid this plaintiff $2,500, which was to include the $900. This plaintiff was liable upon her covenants to Kennedy for the amount of the purchase-price which Kennedy paid her. This plaintiff would be entitled to recover from said Woodruffs, on their covenants, the said sum of $900 and interest; and said Kennedy would be entitled to recover from them the balance between that amount and $2,000, and would be entitled to recover from this plaintiff, upon her covenants, the balance 'between the sum of $2,500 (less the amount of the mortgage) and the amount received from the Woodruffs, or could, if he so desired, recover the whole amount of the purchase-price actually paid from this plaintiff. The demurrer should have been overruled.

The judgment of the court below is reversed, and this case remanded with instructions to overrule the demurrer.

All the Judges concurring.