49 Kan. 702 | Kan. | 1892
The opinion of the court was delivered by
The result of this proceeding depends upon the proper construction of the contract of lease made February 5, 1883, between the owner of the land, H. L. Sage, and Alexander Bras and Charles Bras.
The Bras brothers entered into the possession of the land under the lease, and together cultivated and operated it for about two years. Afier that time Alexander left the farm and engaged in another occupation, and did not subsequently contribute anything toward either rent or taxes. He seems to have abandoned the land and the lease, and left his brother Charles to carry on the farm and carry out the contract. In the month of September, 1886, a new contract was made between Sage and Charles Bras, with the consent of Alexander, which was the same in every respect as the first, except that it omitted the name of Alexander Bras and made Charles the sole lessee, and the only one who could exercise the option to purchase the land at the expiration of the lease. At that time, Sage made an agreement, which was indorsed on the back of the lease, that if the rent was paid when it became due he would reduce it to $120 per year, the lessee to pay the taxes.
If the contract originally made cannot be considered as a sale and transfer of the land, then Alexander Bras acquired no equitable title therein, and no part of the same can be subjected to the payment of the judgments against him. An inspection of its terms shows that it is an ordinary lease for a period of five years, at the annual rental of $144 and the taxes that may be levied against it. It was expressly stated that the taxes were to be paid as rent, and it was also provided that the renters should surrender the possession of the premises at the end of the term in as good condition, usual wear excepted, as
It will be seen that the renters made no agreement to purchase the land at the end of the term, nor were they under any obligation to purchase at that time. There was no completed contract of sale upon which Sage could ask for specific performance, and the renters could have surrendered the premises at the end of the lease without violating the contract. All payments under the contract were to be paid as rent, and not as purchase-money. It is true that the owner of the land had offered and agreed that the renters might have the privilege of purchasing at the end of the five-year period; and this agreement was probably binding upon him; that is, he was bound that the offer should be open and available to the renters at the end of the rental period; but the unaccepted offer had no binding force upon them. They had an option to purchase, which they were at liberty to accept or not at the end of the lease, but the fact that they made a contract' for an option did not constitute a sale nor vest in them any title or interest beyond what was acquired under the lease. Until they had elected to accept the offer made by Sage, and had paid or tendered the purchase-price stipulated in the contract, there was no sale or transfer of the title. (Tied. Sales, §§33, 41.)
The case of Hawralty v. Warren, 90 Am. Dec. 613, is relied upon, but is no authority on the turning point in this case. It was there héld that an optional contract to convey-land, made upon proper consideration, might be enforced; but there, the party to whom the option had been given had
The judgment of. the district court will be reversed, and the cause remanded for further proceedings.
