109 Kan. 762 | Kan. | 1921
The opinion of the court was delivered by
In this action, the plaintiff seeks to compel the specific performance of a contract for the conveyance of real property. Judgment was rendered in favor of the defendant, Thomas M. Keegan; he was permitted to retain $1,000 that had been paid as a part of the purchase price for the land, and his title thereto was quieted. The plaintiff appeals.
The contract, which was in writing, provided that in consideration of the payment of $4,800, the property should be conveyed by Thomas M. Keegan to the plaintiff. One thousand dollars of that amount was paid at the time the contract was signed, November 25, 1919, and was to be forfeited at the option of Thomas M. Keegan and be retained by him in full satisfaction- and liquidation of all damages sustained by him in -the event that the plaintiff failed to comply with the contract. The transaction was to be completed March 1, 1920, by the plaintiff paying $1,800 and giving a mortgage on the land for $2,000. Keegan was to execute a warranty deed conveying the land to the plaintiff, and the deed was to be placed in escrow until the plaintiff complied with his part of the contract. An abstract of the title was to be furnished by Keegan showing a good and merchantable title. Time was made the -essence of the contract. A deed, dated March 1, 1920, was signed by Thomas M. Keegan and his wife and was placed in escrow about the time the contract was executed. An abstract of the title was furnished by Thomas M. Keegan to the plaintiff, but there was delay in furnishing it. The plaintiff received it on or before February 3, 1920. Objection was made that it had not been brought down to date. The plaintiff did not return it to Thomas M. Keegan, but sent it direct to an abstractor to be brought down tó date and wrote Keegan that the cost thereof would be charged to the latter’s account. The continuation was made, and the abstract was returned to the plaintiff, but instead of examining it for himself to ascertain its condition and the condition of the title, he sent it to either a person in
“The obligors in a bond for a deed to real estate, upon default by the obligee, are entitled to a decree canceling the contract and quieting their title,’ without first returning to the obligee the amount paid by him on the contract of sale.” (Syl. ¶ 1.)
To the same effect is Hillyard v. Banchor, 85 Kan. 516, 118 Pac. 67, where this court said:
“It is a general rule that a purchaser of land who has made an advance payment and then failed to fulfill his contract without default on the part of the vendor cannot recover the amount so paid.” (Syl. ¶ 4.)
Also in Cue v. Johnson, 73 Kan. 558, 85 Pac. 598, this court said:
“Courts abhor forfeitures, and will resort to any reasonable rule of construction to avoid them. But when in a contract for the sale of real*765 estate it is stipulated that time shall he of the essence of the agreement, and a forfeiture upon default is provided for, such contract will he upheld and enforced, unless under the circumstances shown it would be grossly inequitable.” (Syl. ¶ 1.)
(See, also, National Land Co. v. Perry, 23 Kan. 140; Nason v. Patten, 88 Kan. 472, 473, 129 Pac. 138; Long v. Clark, 90 Kan. 535, 135 Pac. 673; Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923; Wensler v. Tilke, 97 Kan. 567, 155 Pac. 946.)
“When any instrument of writing shall have been on record in the office of the register of deeds in the proper county for the period of ten years, and there is a defect in such instrument ... in the execution, acknowledgment, recording or certificate of recording the same, such instrument shall, from and after the expiration of ten years from the filing thereof for record, be valid as though such instrument had, in the first instance, been in all respects duly executed, acknowledged, and certified, and such instrument shall, after the expiration of ten years from the filing of the same for record, impart to subsequent purchasers, incumbrancers and all other persons whomsoever, notice of such instrument of writing so far as and to the same extent that the same may then be recorded, copied, or noted in such books of record.”
The statute provides that such an instrument, or the record of it, shall be competent evidence. -
“In the case at bar no tender of an abstract was pleaded nor was any excuse for a failure to do so either pleaded or proven.”
It has been shown that an abstract-was furnished. The answer and cross-petition of Thomas M. Keegan contained the following:
“This defendant says that he has performed upon his part all and and. everything which he was to do and perform \mder and by virtue of said written agreement.”
This was a sufficient allegation of tendering an abstract. This contention of the plaintiff cannot be upheld.
There was another objection to the abstract furnished by Thomas M. Keegan, but that objection is not discussed in the briefs and will not be further noticed.
It does not appear that any error was committed by the trial court, and the judgment is affirmed.