110 Kan. 397 | Kan. | 1922
In this action the plaintiff seeks to recover the possession of real property, damages for its wrongful detention, and damages for the wrongful conversion of personal property. Judgment was rendered in favor of the plaintiff for the possession of the land, for $500, damages for its wrongful detention, and for $113.32, damages for the wrongful taking of personal property. Judgment was also rendered that, before the plaintiff should be let into possession of the land she should pay into court, for the benefit of defendant, the sum of $1,722.12, together with interest thereon, of which $76.44 was for taxes on the land paid by the defendant and the remainder was the balance of the price that the plaintiff had agreed to pay for the land. Both sides appeal.
On May 1, 1915, G. L. Baker, then the owner of the land, entered into an optional contract with W. A. Custer, the husband of the plaintiff, which contract contained the following provisions:
“First parties hereby agree to sell said real estate as described in Article 1, for the sum of eighteen hundred dollars ($1800.00), and hereby give second party an option on said real estate for the sum of one dollars ($1.00), and for a term of three months.
“It is also agreed that said one dollars ($1.00) option money shall become a part of the purchase price, provided second party shall make the purchase by or before the expiration of this option, First parties agree to accept payment for same on the following terms: Cash out of which the judgment and taxes are to be paid or any lien against land, and first parties agree that they will deliver a general warranty deed to W. A. Custer of Haskell County, and an abstract showing good and sufficient title, or to any bank named by second parties and that deed shall convey real estate as described in Article 1, subject to incumbrance as named therein, to second party, or that the deed shall be made to any party or parties as may be directed by the second party hereto.
“It is agreed by .both parties hereto that the liquidated damages upon failure of first parties to deliver good and sufficient title or otherwise fail in this contract, shall be two hundred dollars ($200.00), and shall be due and payable at the time of such failure or within a reasonable time thereafter. It is understood that time is the essence of this contract.”
On June 29, 1915, W. A. Custer wrote G. L. Baker as follows:
“I have sold your land as per your contract to me $1800 net to you. You can have abstract made if you don’t have one, but suppose you have one with the mortgage. Advise me as this one could be procured and brought up to date. I am taking contract and will take $200 bonus money which would 14*399 come to you if party failes to com cros. Advise me as to abstract and so forth.”
On July 5, 1915, G. L. Baker executed and delivered a warranty deed conveying the land to E. 0. Luther, who had on July 2, 1915, agreed to sell the land to the defendant. On July 28, 1915, E. 0. Luther executed a warranty deed conveying the land to the defendant. On December 16, 1915, G. L. Baker and wife executed and delivered a warranty deed to the plaintiff conveying the land to her. J. A. Kephart was in possession of the land as the tenant of the plaintiff on July 2, 1915, and had been for some time prior thereto and was for a long time thereafter. Neither Luther nor Royse made any inquiry of Kephart or the plaintiff concerning any adverse title or interest in the land. J. A. Kephart, in an action of forcible detention commenced against him and W. A. Custer by the defendant, was dispossessed of the -land, and the defendant was put in the possession thereof. Under an execution issued under the judgment in that action, the sheriff levied on and sold the plaintiff's kafir com and milo maize, then on the land. The action was tried by a jury, which returned two verdicts in favor of the • plaintiff, one for the possession of the land and $500, damages for its wrongful detention, and the other for $113.32, damages for the wrongful taking of the personal property. Special questions were answered by the jury, as follows:
“Did the plaintiff Bessie Custer on or about the 19th day of June, 1915, agree with W. A. Custer to purchase said land for $1,800.00 under the terms of said optional contract? Answer, Yes.
“Did plaintiff Bessie Custer pay the sum of $1.00 as part payment for said land? Answer, Yes.
“Did George L. Baker furnish to plaintiff or to W. A. Custer an abstract of title showing good title in himself? Answer, No.
“Was the plaintiff Bessie Custer ready, able and willing to pay the balance of the purchase price at such time as George L. Baker should present her an abstract showing good title in him? Answer, Yes.
“Did Mrs. Custer make any improvements on the land after she had agreed to take the land under the option contract in- question? Answer, Yes.
“Did E. O. Luther before taking his deed from- Baker go to J. A. Kephart or Mrs. Custer and make any inquiry concerning the title or as to what right Kephart was using and occupying the.land? Answer, No.
“Did B. R. Royse before purchasing the land from Luther go to J. A. Kephart or Mrs. Custer and make any inquiry in regard to the title or by what right Kephart was occupying the land? Answer, No.
*400 “If Luther and Royse or either of them had gone to the land before purchasing and had made inquiry of J. A. Kephart concerning his occupancy of the land, would they have learned from Kephart that Mrs. Custer claimed to have bought the land under the optional contract? Answer, Yes.”
“We are tendering $1799.00, less whatever payments havé been made, after the judgments have been taken out, after all taxes and costs have been paid and all incumbrances removed. In other words, we are willing to pay and we offer to pay for this land the full purchase price under this option contract whenever we get a title to it, but we refuse to pay it unless this deed to Mr. Luther and Mr. Royse is canceled — removed from the records of Haskell county. We don’t intend to pay our money over while those deeds incumber the record to this land.”
The tender was not accepted; its conditions were not complied with; but the major part of the judgment seems to have been based on it. •
One part of the action was for the recovery of real property and the other part was for the recovery of damages. In both, a jury trial was a matter of right. (Civ. Code,’§ 279.) There was a jury trial. It was necessary that all the issues made by the pleadings and evidence be submitted to the jury under proper instructions. The jury ascertained the facts, applied to them the instructions given, and returned verdicts accordingly. If those verdicts were supported by evidence, judgment should have been rendered on them.
The plaintiff had not paid for the land; she owed Baker for it; she did not owe the defendant. The warranty deeds from Baker
The judgment as rendered must be intended to bar Baker from his right to recover the purchase price of the land from the plaintiff. Baker is not a party to the action, and the judgment cannot bind him. His rights and obligations concerning the land cannot be settled in this action because he is not a party to it. It is useless to say that he has no rights against the plaintiff and no obligations to the defendant. Baker has both.
It was error to order the plaintiff to pay the purchase money into court for the benefit of the defendant, and it was error to order that, unless the purchase money was paid into court within fifteen days, the plaintiff’s rights to the land should cease and determine. Unqualified judgment for the possession of the land and for damages for its wrongful detention should have been rendered on the verdict therefor.
“On motion of deft, court finds that no part of money required to be paid by plaintiff has been paid, but plaintiff filed notice of appeal and supersedeas bond within 15 days from date of judgment. Costs on first cause of action taxed to plaintiff and second cause of action to deft.”
No such finding or order should have been made after the appeal was taken and supersedeas bond given.
4. The defendant complains of the admission in evidence of the contract between G. L. Baker and W. A. Custer on the ground that it was improper under the pleadings. The defendant’s argument is that the plaintiff’s title was an equitable one, and the facts on which it was based should have been stated. Section 619 of the code of civil procedure, in part, reads:
“In an action for the recovery of real property it shall be sufficient if the plaintiff states in his petition that he has a legal or equitable estate therein. . . . If his action is based on a legal title it shall not b.e necessary to state how the plaintiff’s estate or ownership is derived. If his claim is based upon ■an equitable title, he shall state the facts upon which his title is based in his petition.”
The plaintiff’s petition alleged “that she is the owner and entitled to the immediate possession” of the real property in controversy. The plaintiff did not state that her title was either legal or equitable. She might have been compelled to state that her title was one or the other if her petition had been attacked by motion to make more definite and certain. It was not so attacked. The defendant, by failing to make such an attack, waived his right to complain that the petition did not set out the facts upon which the plaintiff’s title was based if her title was an equitable one. (Mitchell v. Milhoan, 11 Kan. 617; Conaway v. Gore, 24 Kan. 389; Clay v. Hildebrand Bros. & Jones, 34 Kan. 694, 704, 9 Pac. 466; St. L. & S. F. Ry. Co. v. Snaveley, 47 Kan. 637, 28 Pac. 615; Smith v. Smith, 75 Kan. 847, 89 Pac. 896.)
This also disposes of the defendant’s complaint of the refusal of the court to give a requested instruction that the contract did not give W. A. Custer any right or authority to sell the land to someone else, and likewise disposes of several other matters based on the same facts.
“And in this connection we are free to admit that if W. A. Custer had kept himself in good standing under the option, and had not allowed the agreement to ‘cease and determine’ by his own default, he could have prevailed over the claims of Royse.”
“When plaintiff places his execution in the hands of an officer for service, he is presumed to intend that no action shall be taken thereunder not authorized by the terms of the writ, and he will not be liable for a wrongful execution of the writ unless he ordered or directed the officer or participated directly or otherwise than by merely suing out the process. But if it is shown that the execution creditor advised, directed, or assisted the commission of the unlawful act, he will be equally liable with the officer for the injury sustained.”
The court instructed the jury that—
“In order however to make the defendant liable to the plaintiff for such property seized under said execution it is necessary that he be shown to have directed or induced the sheriff to levy on this particular property.”
If there was no evidence to show that the defendant directed the sheriff to levy on that property, the question of damages on account of the sale of it by the sheriff should not have been submitted to the jury. An instruction was requested that the jury be directed to return a verdict in favor of the defendant on that cause of action. That instruction was not given. As the matter is presented to this court, it was error for the trial court to render judgment in favor of the plaintiff for $113.32, damages for the wrongful taking of the personal property. The verdict of the jury for that sum was separate from the verdict for the possession of the real property and the damages for its wrongful detention, and responded to a separate cause of action stated in the petition.
The trial court is directed to fender judgment according to the verdict in favor of the plaintiff for the possession of the land and for the damages for its wrongful detention, and to render judgment in favor of the defendant on the cause of action for the wrongful taking of the personal property. No judgment shall be rendered concerning the taxes.