Zuspann v. Roy

Citations

• 102 Kan. 188
• 170 P. 387
• 1918 Kan. LEXIS 2

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Breach of Warranty against Encumbrances — Mutual Mistake in Deed — Presumptions—Instructions. In an action for damages caused by a breach of a warranty against encumbrances, contained in a warranty deed, where the defense is that the deed does not express the contract of the parties, that the warranty against encumbrances was inserted in the deed by the mutual mistake of the parties thereto, ' and that the contract was that the grantee in the deed should assume and pay the encumbrances, it is not error for the court to- instruct the jury that the deed is presumed to contain the whole of the contract, but that this presumption may be overcome by evidence which incontrovertibly establishes that a covenant to assume and pay the encumbrances was omitted by mistake, and that the mistake was the mutual mistake of both the parties to the deed.</p> <p>2. Same — Instructions. In such an action, it is not prejudicial error for the court to fail to instruct the jury that the execution of the deed and the existence of the encumbrances are admitted, where it conclusively appears that neither of these facts was questioned during the trial.</p> <p>3. Same — Deed—Mutual Mistake May be Shown. A mutual mistake in a deed conveying real property may be shown, although the parties thereto did not, before it was signed, carefully examine it to ascertain whether it expressed their agreement.</p> <p>4. Same — Mutual Mistake Defined. A mutual mistake in a written contract is one that is made by all the parties thereto.</p> <p>5. Trial — Instructions Construed as a Whole. If instructions, where considered together, do not appear to be erroneous, a judgment based thereon will not be reversed.</p>