72 P. 848 | Kan. | 1903
The opinion of the court was delivered by
This was an action to recover on a contract for the sale of land and to declare the same an equitable lien thereon and to foreclose the lien. On November 6, 1886, W. B. Beebe, of Ohio, who was the owner of several tracts of land in Kansas, sold to
In April, 1894, Beebe died, testate, and his son, Stewart J. Beebe, and his daughter, Nettie B. Morris, were appointed executors of his will. The daughter died soon afterward, and Stewart J. continued as sole executor until he was succeeded by a son of Nettie B. Morris. In October, 1895, Jacobitz undertook to rescind the contract and to surrender all rights thereunder to the executors of the estate, who declined at first to release him from his obligation, but later they took possession of the land and collected rents therefrom until the commencement of this action, in 1898. W. H. Evans, the administrator, who brought this action, applied to the probate court of Marion county and obtained an order to sell the real estate in question, as well as other property, for the purpose of paying the debts of the estate. At no time prior to the commencement of the action did the representatives of the estate tender back to Jacobitz
There are several sufficient reasons why the judgment of the court should be affirmed. In the first place, the contract, as the trial court found, had been rescinded. There may have been no express declaration of rescission by Beebe or by those representing his estate, but there need not be in all cases an express rescission ; the same may be implied from the dealings and conduct of the parties. Here Jacobitz was in default and had notified the executors that he desired to surrender and cancel the contract and to relinquish any rights thereunder. While they did not then accept the surrender and relinquishment they did treat the contract thereafter as having been annulled. They did accept from Jacobitz and retain the rents for this land which accrued after the proposed rescission, and
It appears to have been the view of the representatives of the estate, as well as the probate court, that there-had been a renunciation of rights by Jacobitz and a rescission of the contract by the representatives of the estate. A petition was filed in the probate court for an order to sell this property, and a decree was entered directing that it be sold and the proceeds applied to the payment of the debts of the estate.
An additional reason for upholding the judgment, if more were .needed, is the fact that no tender of a deed such as was contracted for was made before the commencement of the action., Although there is some diversity of judicial opinion as to the necessity of a tender.it is well settled in this state that-a party cannot justly summon another into court in such case and impose the cost and annoyance of a suit until he has tendered performance on his own part; that he cannot maintain the action without alleging and proving that he has performed his own obligation by making and tendering a deed of conveyance. (Iles v. Elledge, 18 Kan. 296; Close v. Dunn, 24 id. 372; Morrison v. Terrell, 27 id. 326, and Soper v. Gabe, 55 id. 646, 41 Pac. 969.)