
    [No. 2029.
    Decided February 24, 1896.]
    The Smithson Land Company, Respondent, v. John C. Brautigam et ux., Appellants.
    
    ESTOPPEL — ACCEPTANCE OF BENEFITS UNDER COVENANT OF WARRANTY— ACTION FOR BREACH.
    Where a grantee in a deed avails himself of the covenants of warranty in the deed to receive benefits thereunder, he is estopped from maintaining an action for damages for breach of such covenants.
    Appeal from Superior Court, King County.— Hon. Richard Osborn, Judge.
    Reversed.
    
      J. R. & R. M. Kinnear, for appellants.
    
      Blaine & DeVries, for respondent.
   The opinion of the court was delivered by

Hoyt, C. J.

One A. E. McEachern was the owner of certain real estate situated in King County, upon which there was an outstanding mortgage held by John C. Brautigam, one of the appellants. This mortgage was not paid when due, and suit was brought to foreclose it, and under a decree rendered therein the property was sold and bid in by said appellant, who thereafter obtained a sheriff’s deed therefor. After-wards, he and his wife, the other appellant, for the consideration of $600, conveyed it by warranty deed to one Nicholai, who'went into possession under said deed. McEachern brought an action to set aside the decree in the foreclosure suit, the sheriff's deed to appellant John C. Brautigam, and the deed of said Brautigam and his wife to Nicholai, on the ground that the court which rendered the decree had no jurisdiction so to do. To this action the appellants and said Nicholai were made parties defendant and the sum of $525, the same being the amount of the mortgage debt with interest, was paid into court by McEachern. In said action it was adjudged that the decree of foreclosure was void for want of jurisdiction, that by reason of its invalidity the title of McEachern had not been divested by the sale of the property thereunder, and that by the payment into court the mortgage on the property was satisfied.

Pending this litigation the property was conveyed by Nicholai and wife to respondent. Upon the rendition of the decree setting aside the one rendered in the foreclosure proceeding, the $525 paid into court by McEachern was paid over to Nicholai, or his attorney, and by him- received and transferred to the respondent.

The present action was brought to recover damages for a breach of the warranties in the deed from appellants to Nicholai, caused by failure of title upon the setting aside of the foreclosure proceedings. The appellants claimed in the court below, and claim here, that, when Nicholai and the respondent received the $525 paid into court by McEachern, they elected to waive their right of action upon the warranty growing out of the failure of title by reason of the decree in the action in which such money had been deposited. The superior court held to the contrary, and in so doing we think committed reversible error. It must be presumed that Nicholai claimed the money, or it would not -have been paid over to him, and that respondent acquiesced in what was done by Nicholai and is bound by his acts. The only theory upon which Nicholai’s claim to the money could have been founded was that by reason of appellant’s deed of the premises to him he had been subrogated to their rights. But this could have been so only by force of the covenants of warranty in the deed. Hence, the liability of appellants upon these covenants was the ground upon which he claimed and received the money. And having availed himself of the force of such covenants for that purpose he is estopped from maintaining an action for damages upon such covenants. He could not make use of the covenants in the deed to reach the money in the registry of the court, and at the same time maintain an action for their breach. If no consideration had been received by Nicholai for the money paid appellants, so that without anything ■ being done by him he could have maintained an action for money liad and received, it might be successfully contended .that his claim therefor would not be satisfied by the receipt of a less amount than was due. But the delivery of the deed with covenants of warranty and the taking possession of the property thereunder was the consideration for the money paid, and the qnly remedy of the grantee in the deed, or those holding. Tinder him, "was upon the covenants therein. This being so, he or they, after the breach of these covenants could not make use of them to obtain valuable benefits and thereafter maintain an action for damages for such breach. When they made such use of the covenants they elected to waive any right of action on account of the breach.

Some other questions have been raised in the briefs, but it is not necessary that they should be considered.

The judgment will be reversed and the cause remanded with instructions to dismiss the action.

Dunbar, Scott, Anders and Gordon, JJ., concur.  