Paris v. Golden

Citations

• 96 Kan. 668
• 153 P. 528
• 1915 Kan. LEXIS 461

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Judgment—“Deed of ■ Conveyance” Ordered —Warranty Deed Implied. A judgment in an action for the specific performance of a contract for the sale of land, ordering the vendor to make a “deed of conveyance,” will be interpreted as calling for a warranty deed, where that was the kind of conveyance provided for in the contract.</p> <p>2. Same — Breach of Warranty — Action Maintainable. Where a judgment for specific performance provides that in the event of the failure of a vendor to execute a warranty deed the decree itself shall operate as such a conveyance, and no deed is executed, the vendee may maintain an action for a breach of warranty in case the title proves defective.</p> <p>3. Same — Pleadings—Offer to “Accept Warranty Deed” — Construction. Where the vendee sues for specific performance of a contract to sell land, and in his petition alleges his willingness to accept a warranty deed conveying such title as the vendor had at the time the action was brought, such allegation is not to be interpreted as an offer to take the property subject to an existing mortgage.</p> <p>4. Same — Breach of Warranty — Mortgage Lien — Vendee’s Right of Recovery. Where the petition in an action by a vendee for the specific performance of a contract for the sale of land refers to an existing mortgage, the fact that a judgment is rendered for a conveyance of the property, without an abatement in the price, does not preclude a subsequent action against the vendor for breach of warranty on account of the existence of such lien.</p> <p>5. Same. A vendee who, with knowledge of the existence of a mortgage securing a note of the vendor, pays for a tract of land the full amount contracted to be paid for a clear title, is not presumed to accept it subject to such lien, in the absence of some expression to that eifect.</p>