Hoyt v. Rothe

Citations

• 95 Wash. 369
• 163 P. 925

Syllabus

<p>Covenants — Incumbrances — Highways. A public highway is impliedly exempted from the effect of a covenant against incumbrances.</p> <p>Same — Warranty—Eviction.— Paramount Title — Proof. Upon an issue as to breach of warranty by partial eviction by one who disputes the boundary line, paramount title need not necessarily be proved by the record, since adverse possession may support title.</p> <p>Same — Warranty—Breach — Remedies of Vendee — Paramount Title — Burden of Proof. Where, upon a sale of land by general warranty, a part of the land is in the possession of another who refuses to quit on demand, the vendee may rescind the contract or he may affirm and claim damages to the extent of the value of the part withheld, and counterclaim therefor in an action for the price; and if he does so he must assume the burden of proving paramount title.</p> <p>Same — Warranties—Breach—Eviction—Paramount Title — Evidence — Sufficiency. The vendee under a warranty deed, counterclaiming in an action for the price for the value of the part of the land in the possession of another, does not sustain the burden of showing a paramount title in the third party, where it appears that there was a shortage in the land inclosed, and the third party, an adjoining landowner, merely claimed to the true boundary line, and refused to accept a survey of the particular tract while agreeing to abide by a survey of the whole section.</p>