Campbell v. Miller

CURTIS, J.

Action brought to recover the amount due on a promissory note, given as part payment of certain real property sold by the plaintiff to the defendant E. H. Miller, who will be referred to hereafter as the defendant. Alice A. Miller, the other defendant, is his wife, and her only interest in said real property is by reason of this rela

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tionship. By an amended answer and cross-complaint defendant sought to recover damages for an alleged breach of an implied covenant of the grant deed, executed by plaintiff to defendant, B. H. Miller, and conveying to said defendant the said real property. Said breach consisted, according to said amended answer and cross-complaint, of an outstanding lease of said premises, executed by plaintiff prior to said conveyance, whereby plaintiff leased said premises as a storeroom for a term extending some two years beyond the time of the purchase thereof by said defendant. The court found that “the said defendants had full notice and knowledge of the existence of the said lease and purchased the said premises with such full knowledge and with the agreement that they took the title thereto subject to the terms of said lease.” Judgment was in plaintiff’s favor for the full amount sued for. From this judgment the defendant has appealed, and the sole point made by him for a reversal of the judgment is that the evidence does not support the above finding of the court. There was substantial evidence before the trial court to show that defendant, E. H. Miller, was well acquainted with the said real property before the purchase thereof by himself; that he owned the adjoining property and that he knew of the lease of said premises at the time of said purchase. The transfer of the property from plaintiff to him was consummated through escrow. At the same time defendants were selling half of said real property to a third party, and this second transaction was also carried on and completed through escrow. The escrowed instructions with plaintiff and also those with said' third party were each signed by defendant, E. H. Miller, and the former contained the following provision: “I waive your securing lease through escrow; rent to be adjusted outside of escrow,” and the latter escrow instruction contained a similar statement in these words, “I waive your securing lease through escrow; no rent to be adjusted through this escrow.” After the execution and delivery of the deed the defendant for some months collected the rents due under the lease from the tenant in possession. Some two months after the date of the deed defendant called upon plaintiff and asked for said lease which was given him by the plaintiff. After this suit was brought the defendant called upon plaintiff’s attorneys