1008 O'BAn v. HIGHT. [169 0 TAR V.• HIGHT. - Opinion delivered November 30, 1925. 1.• DEEDS—MERGER OF CON TRACT.—A contract providing for a conveyance of land, upon payment of the consideration, with a clear abstract of title, became merged in the deed subsequentlY exec ' uted, and a suit 'for defect in the title should be based upon the covenant of warranty in the -deed, and not unon' the 'prior contract. 2. APPEAL AND ERROR—HARMLESS ERROR. = fhe error of admitting hearsay evidence in an action to recover for breach of warranty •as harmless Where plaintiff was entitled to recover under the • undisputed facts. 3. APPEAL AND ERROR—HARMLESS ERROR.—In an action for breach .4:,4 a contract to convey and for breach of warranty error of submitting questions whether the contract was breached, when the contract had- been merged in the deed, and whether a guardian's sale was void, 'where the plaintiff under• the undis.- puted facts. was entitled to recover for •breach of-a warranty in the deed, held harmless. 4. APPEAL AND ER ROR— REMISSION , OF PART OF •RECOVERY.—Wherp, ,in an action for breach of warranty against incumbrance, the jury were erroneously allowed to , award loss of profits in , a resath of ' the' land' and atforney's fee as damages, the error may be cured by reduCing the judgment. 5. GUARDIAN AND WARD — UNLAWFTJL SALE OF- WARD'S LAND .—Under Oklahoma Rev. L. 1910, § 6653, allowing a 'minor's land to be sold only for support and education or for, reinvestment, a sale by guardian for the purpose of paying a mortgage indebtedness conferred no title. 6: C OVENANTS—DAMAGES FOR BRE1ACH.—The corredt measure of damages for breach of a Warranty is either the consideration paid, with interest, or, in case the land is retained, the expense of procuring the outstanding title or correcting the defects in the title. 7. CO VENANTS—DAMAGES FOR BREACH.—D amages f Or breach of a warranty against incumbrances do not include loss of profits on resale of the property or attorney's fees for enforcing the breach. Appeal from Sebastian Circuit Court, Ft.. Smith District; John, E. Tatum, Judge; affirmed with Modifi- cation. Chew & Ford, for appellant: Roy Gean and J. A. Gallaher, for appellee. HUMPHREYS, J. This suit was instituted by appellee against appellants in the circuit court for the Fort Smith
r'BAR V: HIGHT. 1009 District Of Sebastian County to recover damages:for ,an alleged breach of contract to :convey 'and. furnish a: clear abstract of title to the:S 1/ 2 of the .NR 1/2:of. section 19, township 8 north, range:26 east,..in LeFlore County, ;Okla-homa, which 'appellant , purchased from.appellee, _and ,for a breach of . the warranty under- an Oklahoma,,warranty deed. The contract for ,the sale and purchase land was of date . . lgareh 19, of ,thP , 1920, and the warranty deed, expeuted and deliVered , :p,ursnant thereto, ;was, 1 Of date inne 7, 1920. . the -contraet_previded for a conV,eyance of the" . land uPon payment of the cOnsideration :with , a. clear abstract Of title. The Abstract of, title wai deliVered for examinAtiOn prior to the execntion and delivery ____,P;ivthe deed. The deed warrantedthe.title to be." foreVer clea:r ' and discharged Of and from'allIO‘rmer.o.rants charges, _taxes jUdgments, mortgages, , 6,nci 'otl jex liens and incnnibrances of Whatsoever nature .` exePf.a 'certain mortgage for $500." We think the Cilliti 7 act *Tied the deed, and the in . suit must be in effect'a silif upon the WarrantY. It Was alleged . that appellant,--J2M.A? 'Bar, purchased 'the land at a wild gnardian's sale; that reason - and .'fOr . did'not oWn the ldgal title to theland the time he Conveyed:it to appellee 'and thaeunderthe hoina IaW this 'constdutecl'a;:breaCh of his .. cOvenant Of wartanty from the : date of' his deed td'apPellee? ApPellants filed an AilSwer ; denying that the githY-dian's sale of' the land Was' void, and this formed the real issue in the ease "befdre the' trial' ' The cause was submitted te' a jury upon the plead-ings,' testithony, : and' instructions of the cOhrt,' which reSulted in a verdict and conseqiient :judent again'st appellants, from which an appeal ; has been duly . prod-cuted to' this court. ' In'the course of the trial the court, bverith'e objection 'and exception of : appellants, 'erroneously !adinitted hearsay evidence; erroneously submitted tO the juty the question Of whether appellants' breached the sale ' , cimiract'bf And purchase . ' of --: the land when 'the 'contract : laid merged in the execution iud delivery.of.the'Aeed;cerro-
1010 0 TAR V. HIGHT. [169 neously submitted to the jury the question of , law * as to whether the guardian's sale, of•the land to the' appellant, J -. M. 0 'Bar, was void Under the law of Okla-homa; and erroneously submitted to , the jury the ques-tithis of law as to whether appellee could recover the loss of profits in a resale of the land arid attot-ney's fee in this case as damages on' 'account , of a breach Of cOvenant of warranty, contained in the deed. The errors of the court 'mentiened above, except the last ' two, were harmless, as appellee , was entitled to recover on the breach of Warranty in the deed under facts appearing in the- record which are undis-&fed.. The errors last mentioned, while prejudicial, may be remedied by a reduction of, the . .]udgMent in a gn m equa , l to the amount of the two item - s. JriSt . ice there- fore, may be done the parties without a reversal of, the judgment in its " entirety, . arid a remand of the ' cause for a new, trial. - The record reflects that J. M. O'Bar purchased the land in question , at a guardian's sale which; was ordered and , confirmed by the colmty 'court of ,,LeFlore County, Oklahoma, on. the petition of . .Mrs. Grace Wright, -who was the, duly. -appointed, qualified,- and acting guardian of the Morris heirs: The petition, for , the sale alleged that the ancestor of the- minors mortgaged this land together with other lands for ,$2,500, which would soon be due, and the guardian prayed .for a private sale of the land to pay said mortgage indebtedness. The sale was ordered, made, and 'confirm'ed for that purpose. Under -the statute laws- of Oklahoma lands of minors can- only be sold for their support and education or for reinvest-ment. Section 6653, vol. 2 of Revised Laws of Oklahoma, 1910: It appears on the face of the petition and throughout ,the -proceedings that the, county court was without • jurisdiction to order the sale .for the purpose of paying off . an indebtedness of the minors' ancestor. It was said in . the case of Lee v. Tonsor, 62 Okla..14:- "Where it affirmatively appears from the face 'of the record that
ARK. 0.TAR v.. HIGHT. 1014i the court is Without power to make the order , that was made, such order is void and subject to collateral attack." No title paSSed to J. M.''O'Bar under the sale; : so he did not have.a legal title- to the :land to• convey to appellee: A: recovery May be had .in -Oklahoma . on• a breach of warranty in a deed before an . evictien. Okla,. .56. Davi. .s, ,... 30 The 'record further shows that the' appellee :Sold and ccinveyed" . :the . land to Di. E.' .1 1 . consideration of $6 .11odgekifOr a ,000 !1:1 e . fere . the" . bredch of ,warranty .was,disCovered. When„it: was...discovered, that the. guardian's sale was void,. appellee . 's. 0 'Bar lattorney nOtified 4. M. . that the title would have to . be , corrected,. and that, Miles's' he Would . &operate . With appellee in..bringingi_the necessary court proceedings; appellee would bring suit against hiny for a breach of . warranty iinddr . the homa'státutes: 0 Okla-, 93iar . reftised to aSsist in perfeeting the title,, claithing s,that • it • 'was ' , not defe'ctive.'• • 'Thereupon appellee:brought . : suit 'in- Oklahoma grantee,, Dr. nanie-Of .-his ,I1Odges; tO 'correct the . ebtained -defect,.; and , a :decree quieting 'histitle. Hedges 'accepted the title 'thus quieted on 'condition' that.aPpellee 'would . dedUct.$655:29 from the puichase price:' 'Appellee - allOwed thededuction, and, in--addition, expendedin 'Perfecting .the title; the_ f011owing amounts; to-Wit: -$326.50 for attorney's:fee; $32.90 for court costs; . back taxes; and4I6.50 , for . -tiaaking-'a total. inclUding- the 'deduction—of $1,031.19. This sui.t . was .then . brOught -for that and an attorney's Tee , 'amount . of . $250 1 on- account . of the breach of Warranty. 'A .reCovery , 'was had:Tor- these . iterns. ;The 'correet Measure ef damages for a breach f was -either: ;the of the-warranty , consideration -paid withl,:interest case the -land waS retained ; . the . expense' ef Produring the :outstanding title' or correcting . the: The . d ' efects. in : the titIe. loSS Of:profits' .a reSale 'and • an. attorney 's . fee . fOr enforcing . the , breach were:: n ot protected , lay- :the 'yeeve-nant_of warranty.; It_ was error to allow'k recevery for these _items: -.• .;. :,t. , • • • The 'judgment will therefore be reduced-bY the tota,l amount of ! these items, andras niedified, will be affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.