Talbott v. Donaldson

Citations

• 71 Kan. 483
• 80 P. 981
• 1905 Kan. LEXIS 168

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Review of Order Overruling a Demurrer. The defendant in a civil aetion has a right to a review of an order overruling his demurrer to the plaintiff’s reply on a transcript of the record, without bringing up the evidence produced at the trial, if the record do not show affirmatively that the error was cured.</p> <p>2. -Record not Overcome by Presumptions. This court will not presume, in such a case, that the district court admitted evidence outside of the issues made by the pleadings in-order to avoid the effect of prejudicial error shown to have been committed in ruling on the sufficiency of the pleadings.</p> <p>3. Conveyances — Suit for purchase-money, and Foreclosure■— Counter-claim. A purchaser of land conveyed to him by a deed containing full covenants of warranty who retains a portion of the purchase-money as security against a lien upon the land claimed by a third party in a pending suit against the vendor has the right to protect his interests by purchasing the land at a sheriff’s sale made pursuant to a judgment in such suit enforcing the lien, which the vendor neglects to supersede; and in a subsequent suit by the vendor against the purchaser for the balance of the purchase-money the latter may counter-claim for the damages occasioned by the breach of the covenants in his deed notwithstanding the judgment enforcing the lien has, in the meantime, been reversed and the lien held to be unenforceable.</p>