Feldhut v. Brummitt

Citations

• 96 Kan. 127
• 150 P. 549
• 1915 Kan. LEXIS 329

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Exchange op Real Estate — Deeds in Escrow — Title Found Unmarketable — Rescission of Contract. The plaintiff and defendant made a contract to exchange landed properties and named a real-estate agent as depositary to hold their respective deeds until their abstracts of title were approved. Notwithstanding the disapproval of defendant’s title, the real-estate agent delivered plaintiff’s deeds to defendant. In a suit for rescission and cancellation of plaintiff’s deeds the issue turned largely upon the question whether a certain irrigation ditch' and certain rights of way for irrigation ditches were incumbrances on the land. Held, (a) That the established irrigation ditch plainly observable on the property was not an incumbrance to the extent of being a breach of covenant. (6) Rights of way for irrigation ditches incumbering the record, indefinite in extent, not yet established nor open to view by inspection of the property, with the rights of the servient feeholder undetermined, do constitute incumbrances in breach of covenant.</p> <p>2. Same — Findings of Fact and Conclusions of Law Approved. General findings in favor of plaintiff and conclusion of law based thereon examined and approved.</p>