BAKER v. EBAHOTUBBI

BAKER v. EBAHOTUBBI
1926 OK 403
246 P. 230
117 Okla. 224
Case Number: 16806
Decided: 04/27/1926
Supreme Court of Oklahoma

BAKER
v.
EBAHOTUBBI, Adm'r.

Syllabus

¶0 1. Covenants--Breach of Warranty--Action not Maintainable by Purchaser of Interest in Land Duly Recognized in Partition Sale.
Where a party purchases an undivided one-fifth interest in real estate, which has been conveyed to him by a warranty deed, while an action for partition by the owner of an undivided three-fifths interest is pending, he cannot recover damages for breach of warranty after a decree for partition, in which it was determined that his grantor owned the undivided one-fifth interest therein, and where the purchase money to the total amount of the value of his undivided one-fifth interest has been deposited with the clerk of the trial court for his benefit by the grantee under the sheriff's deed.
2. Same -- Partial Breach of Warranty Where Two Tracts Bought for Lump Sum and Respective Values not Shown.
Where, under the above circumstances, the warranty deed conveys two separate tracts of land, situate in different counties, and the consideration for the total acreage was paid in a lump sum and only one of the tracts of land has been partitioned and there is no proof offered to show what part of the consideration was paid for the tract partitioned and what part of the consideration was paid for the other tract that is undisturbed, under section 5980, Comp. Stats. 1921, the grantee cannot recover for a partial breach of the covenant of warranty, and where the evidence fails to show the proportion of the price of the value of the property affected by the breach bears to the value of the whole property, the grantee cannot recover in an action for breach of warranty.

Commissioners' Opinion, Division No. 5.

Error from District Court, McCurtain County; G. M. Barrett, Judge.

Action by C. P. Baker against Moffin Ebahotubbi, administrator of the estate of Fannie Ebahotubbi, deceased. Judgment for defendant, and plaintiff brings error. Affirmed.

G. H. Montgomery, Lydick, McPherren & Wilson, and M. E. Jordon, for plaintiff in error.
A. G. Etheredge and J. Will Jones, for defendant in error.

THOMPSON, C.