| Kan. | Jul 15, 1888
The opinion of the court was delivered by
This is the fifth time that this case has been before this court for consideration. (Gray v. Crockett, 30 Kan. 138" court="Kan." date_filed="1883-01-15" href="https://app.midpage.ai/document/gray-v-crockett-7885995?utm_source=webapp" opinion_id="7885995">30 Kas. 138; Crockett v. Gray, 31 id. 346; Gray v. Crockett, 35
If the original contract had been carried out in good faith by Gray and H. C. Long, Gray would have paid Long five hundred dollars on the 28th of April, 1881; fifteen hundred dollars, July 28, 1881; and six thousand dollars, less the value of the homestead acre, in three years from April 22, 1881, with interest at eight per cent, from that date. Gray was also to pay Armstrong a commission of one hundred dollars, and was to have possession when two thousand dollars were paid; hence he would have been entitled to possession on July 28, 1881. A deed was to be given by Long, and Gray was to execute a mortgage to him for balance, due in three years, with eight per cent, interest; Gray to have the privilege of paying the whole or part sooner. Long and wife made no conveyance, and never offered to convey. Gray brought his action for specific performance on March 3,1882, and the case has been in the courts ever since — over six years.
The trial court, in its decree for specific performance, required Gray to pay at once into court the sum of $500; also $66 for taxes paid by Elizabeth I. Crockett, and $100 for Armstrong’s commission; also $1,500 in ninety days; and to deposit in court, for delivery to Elizabeth I. Crockett, his note in the sum of $5,500, ($500 being abated on account of the homestead acre,) payable three years from date, with interest at eight per cent, per annum, payable annually; said note to be secured by a mortgage upon the premises sold to Gray by Long. Under said decree, Gray was also to have the privilege to pay the mortgage, or any part thereof, prior to the maturity of the note secured by the mortgage. It was shown by the evidence before the trial court, that the rental value of
The contention upon the part of counsel for the Longs and Mrs. Crockett is, that Gray should have been required by the decree of the trial court to pay the total $8,000, (less the value of the homestead acre,) with interest thereon from April 22, 1881.
On the other hand, it is claimed that the court entered the proper judgment under the circumstances of the case, because Long and wife failed to give Gray possession of the premises; and also failed to perform according to the provisions of Long’s contract; but, on the contrary, conveyed the premises to Elizabeth I. Crockett, who had notice of Gray’s contract with Long.
“The result in equity of a contract of sale is that the thing sold thereupon becomes the property of the purchaser, and the purchase-money the property of the vendor; whence it follows that the purchaser is entitled to the rents of the estate from the time fixed for completion, and the vendor is entitled to interest on the purchase-money from the same time. In a word, the estate and the purchase-money are things mutually exclusive, and neither party can at the same time be entitled to the enjoyment of both.”
“Prima facie, and in the absence of stipulation, the time fixed for the completion of the contract is the time from which the purchaser is entitled to the rents, and is liable to the payment of interest. But this is liable to exceptions.”
“Where the interest is much more in amount than the rents and profits, and the delay in completion is clearly made out to have been occasioned by the vendor, the court, to prevent the vendor from gaining an advantage by his own wrong, gives him no interest, but leaves him in possession of the interim rents.”
(Fry, Spec. Perform., §§ 889, 891, 892; Pomeroy, Spec. Perform., §§ 429-431; Davis v. Parker, 96 Mass. 94" court="Mass." date_filed="1867-01-15" href="https://app.midpage.ai/document/davis-v-parker-6414879?utm_source=webapp" opinion_id="6414879">96 Mass. 94; King v. Ruckman, 24 N. J. Eq. 556; Worrall v. Munn, 38 N.Y. 137" court="NY" date_filed="1868-03-05" href="https://app.midpage.ai/document/worrall-v--munn-3580495?utm_source=webapp" opinion_id="3580495">38 N. Y. 137.)
In this case, it appears that by Long’s refusal to convey, Gray has been kept out of possession of the premises, and also from all use or improvement of the same. As the rents
There has been no cross-petition filed upon the part of Gray, and hence we shall not pass upon any of the errors alleged by his attorneys.
It is stated iu the briefs that H. C. Long has recently died; this, however, does not appear from the record. If he has deceased, as stated, we suppose that the action will be revived against his proper representatives. If Mrs. Long or Mrs. Crockett, is now, by the death of Long, a tenant-in-common with Gray, then of course he will not be entitled to the exclusive possession of the premises as agaiust a co-tenant.
The decree and judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.