concurring and dissenting.
I concur with the majority's resolution of issues one and two. I dissent, however, with respect to issue three. I disagree with the majority's conclusion that McClaskey "abandoned the claim of damages for breach of warranty." Ante at 1232.
It is true McClaskey preferred rescission as a remedy for the breach of warranty he suffered. He did not limit his prayer for relief to this remedy alone, however. McClaskey's prayer for relief reads as follows:
WHEREFORE, the Defendant, Marvin Randall McClaskey prays for judgment against the Defendants, M.R. Hudson, A.B. Hudson, and Mary Hudson Vande-grift, in an amount that will fully and fairly compensate him for the expenses and attorneys fees involved in defending his title herein and in the event the Plaintiff is successful in establishing its easement of right of way for the recigion [sic] of the Deeds to the property and for the return of the purchase price and for all other further and proper relief.
*1233Supplemental Record at 19 (Cross Complaint of Defendant Marvin Randall McClaskey). McClaskey sought both rescission and "all other further and proper relief." Upon remand, the trial court, too, believed McClaskey sought damages: "Let the record reflect that this is the time the Court has set for trial on the issue of damages and the nature of damages...." Record at 34. McClaskey offered, and the trial court accepted into evidence, extensive documentation regarding purchase, tax, filling, and title defense expenses he incurred. See Record at 54, 69, 79-81. McClaskey also tendered evidence concerning the value of the property before and after the discovery of the State's easement. McClaskey did not elect one remedy in the sense of abandoning the other, as the majority claims. He prosecuted both remedies available to him.
In my opinion it is unconscionable to deny McClaskey a remedy for the loss he incurred. There is no question the Hud-sons breached the warranty of title. McClaskey testified, and his cross-complaint averred, that the encumbered property was of no value to him. He purchased the property as a commercial venture, and the purpose of his purchase was utterly defeated by the Hudsons' breach of warranty. The denial of both remedies of rescission and damages, in light of the undisputed breach of warranty, is a miscarriage of justice we should not condone. A} though I agree the trial court erred in ordering rescission, I would remand the cause to determine damages incident to the Hudsons' breach of warranty, including considerations such as diminution in the value of the property, the cost of defending title, tax payments, filling expenses, and crop revenue.