94 P. 144 | Kan. | 1908
The opinion of the court was delivered by
In this case there was a contract in writing for the sale of eighty acres of land, executed June 23, 1902. The purchase-price was $3100. Brown, the purchaser, paid $500 and was given possession of the land. McCrie, the vendor, was to convey by good and sufficient warranty deed March 2, 1903, and to furnish an abstract showing perfect title in himself, at which time Brown was to pay the balance of the purchase-price, without interest. This action was commenced on April 4, 1904, by the vendor, to recover the purchase-price of the land, the petition alleging that on August 3, 1903,-the plaintiff tendered a deed and abstract of the kind called for and that the defendant refused to accept the same.
Defendant, filed an answer and cross-petition, the first count of which admitted the execution of the contract, the payment of the $500, and that defendant secured possession of the land at the time the contract was executed and “has since succeeded in holding the same.” All of the other averments of the' petition were denied. A demurrer to this count of the answer was overruled.
The controversy arises over the second count of the
The demurrer was sustained upon the theory that the case is controlled by Dunn v. Mills, 70 Kan. 656, 79 Pac. 146, 502. The court, however, is of the opinion that the facts set out in the answer and cross-petition are sufficient to take the present case out of the operation of the principles upon which that case was decided. That the rule declared in Dunn v. Mills is the correct one when applied to the facts in that case admits of no doubt. There the vendee had continued in the peaceable and undisturbed possession of the premises under the contract; he made no objection to the deeds, to the abstracts, or to the vendor’s title; and it was held that the circumstances presented a case governed by the well-established rule that a vendee who receives possession under the contract and whose possession is not, disturbed will not be permitted to deny his liability for the purchase-price on the ground that the title is defective and at the same time insist upon remaining' in possession.
In the present case, according to the averments of the pleading, the possession of the vendee cannot be said to have been peaceable and undisturbed, for it appears that the persons claiming adversely have at all times threatened to eject him from the land, and,
In construing the pleading every reasonable inference and presumption must be indulged in its favor. We have pro right to assume that the second action was collusive or that it was not brought in good faith. It further appears by the answer that the vendor’s title, if defective for the reasons stated, could not be cured by lapse of time, owing to the commencement of Tucker’s-suit before the bar of the statute.
In view of the equitable character of this action, and the power a court of equity possesses to grant to either party whatever relief his equitable rights demand, we are inclined to the opinion that it was the duty of the court to overrule the demurrer and retain the cause until the court could determine what the equitable rights of the párties were. It is within the power of a court of equity, under such circumstances, to inquire whether the second action is collusive or whether it has substantial merit; and if equity requires the postponement of this action until the second shall have been finally disposed of the court has power to make any order found to be necessary. It may determine, upon fuller investigation, that the rule declared in the case of Dunn v. Mills, 70 Kan. 656, 79 Pac., 146, 502, applies to the facts in this case. On the other hand, it may determine, under the facts and circumstances, that defendant is entitled to some of the relief asked for in his cross-petition. A court of equity can so mold and shape the subsequent proceedings as to protect the rights of both parties and avoid a multiplicity of actions. It may become the duty of the court to consider the question of the solvency of either party as affecting the rights of the other. In McIndoe v. Morman, 26 Wis. 588, 7 Am. Rep. 96, it was said:
“In all such cases the court may so shape and control its proceedings as to prevent injustice, and compel either party to do that which is equitable.”
“But at an early day, in England and in this country, certain cases were declared to be exceptions to these rules, or, more properly speaking, not to be within them; as, if the vendor is guilty of fraud; or can convey but will not, either from perverseness or to secure a better bargain ; or if he has covenanted to convey, when he knew he had no authority to contract to convey ; or where it is in his power to remedy a defect in his title, and he refuses or neglects to do so; or when he refuses to incur expenses which would enable him to fulfil his contract; in all these cases, the vendor or lessor is liable to the vendee or lessee for the loss of the bargain, under rules analogous to those applied in the sale of personal property.” (Page 172.)
In Reeve v. Downs, 22 Kan. 330, it was said that the general proposition is “Subject to many limitations and exceptions” (p. 335),' and abundant authority recognizing some of these exceptions may be found in the excerpts from leading cases on the subject in the opinion in Dunn v. Mills, 70 Kan. 656, 79 Pac. 146, 502. Thus, in Sanderlin v. Willis, 94 Ga. 171, 21 S. E. 291, it was held that the general rule obtains “unless there has been fraud on the part of the vendor, or the latter is insolvent, or there is some other ground which would in equity entitle the purchaser to relief.” (Page 173.) In other cases cited, as Dahl v. Stakke, 12 N. Dak. 325, 334, 96 N. W. 353, McLemore v. Mabson et al., 20 Ala. 137, and Wyatt v. Garlington, 56 Ala. 576, it will be found that the purchaser had never been disturbed in his possession or had never been threatened with dispossession.
The judgment is reversed, and the cause remanded for further proceedings in accordance with these views.