Legal Opinion

Kansas Pacific Railway Co. v. Dunmeyer

Supreme Court of Kansas

Decided January 15, 1878PublishedCited by 11 opinions

Error from Saline District Court. Action by Dunmeyer, for breach of covenant of possession. Trial at the May Term 1876, and judgment for plaintiff. The Bailway Company, defendant, brings the case here.

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Error from Saline District Court. Action by Dunmeyer, for breach of covenant of possession. Trial at the May Term 1876, and judgment for plaintiff. The Bailway Company, defendant, brings the case here. All necessary facts are set forth in the opinion, infra. for plaintiff in error, contending that an allegation that “eviction was by due course of law,” was not sustained by a proof of constructive eviction, cited Rawle on Cov. 249' 5 Iowa, 89; 17 111. 185; 11 N. H. 74; 51 Ind. 519. A party cannot allege one thing, and prove its equivalent by proving a different thing: 4 Sandf. 665; 8 Kas. 568.

1Opinion of the Court

The opinion of the court was delivered by

Horton, C. J.:

On the 11th of November 1875 an action was commenced in the court below by Lewis Dunmeyer against the K. P. Rly. Co., to recover-damages because, by a deed dated 12th November 1870 the railway company sold and conveyed to the said Dunmeyer certain real estate, described as the W. \ of the S.E. -J, and the E. J of the S. W. f of section 25, in township 13 south, range 2 west of 6th P. M., Kansas, and covenanted therein to warrant and defend “the possession of the said premises” to the said Dunmeyer, but after the execution of said deed the…

2Cases cited2 opinions

  1. McGary v. HastingsCalifornia Supreme Court · 1870
  2. Union Pacific Railway Co. v. YoungSupreme Court of Kansas · 1871

3Cited by11 opinions

  1. Schneider v. Lipscomb County National Farm Loan Ass'nTexas Supreme Court · 1947
  2. West Coast Manufacturing & Investment Co. v. West Coast Improvement Co.Washington Supreme Court · 1901
  3. Dillahunty v. Railway Co.Supreme Court of Arkansas · 1894
  4. Joyner v. SmithSupreme Court of Georgia · 1909
  5. Jennings v. KiernanOregon Supreme Court · 1898

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