28 Kan. 804 | Kan. | 1882
The opinion of the court was delivered by
This was an action in the nature of ejectment, brought by plaintiff in error against the defendant in error, to recover possession of a fractional quarter of land, situate in Crawford county. The plaintiff claimed the legal title and the right of possession by virtue of a deed of general warranty, executed by the Kansas City, Fort Scott &
I. It is urged that the court erred in giving the defendant judgment for the possession of the land in controversy, because it is claimed there was no valid assignments of the land contracts to the defendant, in this, that the wife of F. M. Chambers and the husband of Electa J. Chambers did not join in the assignments; and further, that these contracts are void, because they were not recorded. Neither of these objections has any force whatever. The assignment of the land contracts from F. M. Chambers to Electa J. Chambers was made and acknowledged the 25th day of September, 1876, and the assignment from Electa J. Chambers to the defendant was made August 19, 1878, and acknowledged October 2, 1878. The defendant accepted the land contracts and the assignments
II. The claim is made that the court erred in not granting on demand a'second trial. It appears that the first trial was had at the September term; of the district court for 1880, and on the 16th day of October; that on the 20th day of April, 1881, plaintiff filed an amended petition, and on May 11, 1881, defendant filed his second amended answer. The •second trial was had January 4, 1882, at the Januai’y term ■of the court for that year. It does not appear that the plaintiff demanded another or second trial under the terms of § 599 of the code after the amendment of the pleadings, and the ■question is not properly before us for our adjudication whether plaintiff was entitled to two trials after the petition and answer had been amended.
III. As it is admitted that the land in controversy originally belonged to- the Missouri River, Fort Scott & Gulf railroad company, and as the Kansas City, Fort Scott & Gulf railway company derived its title from the former company, and was possessed of the legal title upon the date it executed the deed to the plaintiff, the material question before the trial court was, whether the land contracts under which defendant claimed were subsisting and in force at the time plaintiff obtained his title, notwithstanding the nonpayment of the interest, taxes and other sums as therein •specifically provided. These contracts were prior to the con
While parties have the right to make their contracts as-stringent as they please, and to make time of payment of the very essence thereof, yet no forfeiture or advantage can be taken of a defaulting party where there has been an express waiver of the default, and an extension of time therefor agreed upon, and the party is in a condition to make payment in accordance with such subsequent agreement. And it is equally clear, that where a party with the express stipulation of the land-owner enters into possession thereof under the-assignment of a contract of sale.where time is of the very essence, and some of the payments therein provided for have not been made, and upon an agreement with such owner that..
IV. After the jury returned a verdict in favor of the defendant, virtually deciding that as’the equitable owner of the premises he was entitled to the possession thereof, the court proceeded to determine the money due to the plaintiff upon the land contracts, and adjudged that the defendant pay to the clerk of the court below for the benefit of the plaintiff, the sum of $1,240.24, within sixty days from the rendition of the judgment. No objection seems to have been taken to this proceeding, except it is alleged that the amount due plaintiff is $1,440.89, in the place of $1,240.24. While the plaintiff has the legal title of the premises, and by the judgment of the district court holds such legal title in trust for the defendant, he is in fact an equitable mortgagee, and has a lien thereby for his security for the unpaid purchase-money. In addition to this, as he stands in the shoes of the railroad company executing the land contracts, he is also entitled to have repaid to him all the taxes paid on the land by the company after the execution of the contracts, together with lawful interest thereon, and also' the taxes- paid by himself, with interest. We have made a calculation of the amount of these various sums, but our estimate does not exceed the $1;240.24 ordered to be paid by the court below. In the calculation furnished by counsel of plaintiff in error, some accounts are entered which do not appear in the evidence, and no deduction is made in such estimate for the moneys paid by the defendant to Perry, and by Perry turned over to Clark. Therefore we do not perceive that the amount of the lien of plaintiff, as found by the court, is erroneous.
The judgment of the district court will be affirmed.