123 Kan. 72 | Kan. | 1927
The origin of this controversy was a contract between J. H. Leslie and G. R. Gage by which the former agreed to exchange a city residence for a farm owned by the latter. Upon the refusal of Leslie to carry out the contract, Gage brought an action for specific performance and a decree in his favor was rendered. Leslie appealed ^and that judgment was affirmed by this court. (Gage v. Leslie, 117 Kan. 399, 231 Pac. 841.) Pending that appeal Leslie remained in possession of the city property, and it appears that he paid the taxes thereon for 1923 amounting to $427.02. On December 18, 1924, he paid the first half of the taxes for 1924, amounting to $198.65, and in January, 1925, Leslie paid the taxes for 1923 on the farm property, amounting to $228.22. After the judgment of affirmance Gage brought an action against Leslie for the use and occupation of the city property from August 11, 1923, when the contract of exchange was made until the giving of a bond upon the appeal from the judgment for specific performance, and he also brought another action against Leslie and his bondsmen upon the bond given on appeal for the use and occupation of the city property from the time the bond was given until possession was actually delivered.
These cases were consolidated and tried together. The rental value of the city property was submitted to a jury which found it to be $95 per month, and the court then tried out the questions of the right of Gage to recover rent and also the right of Leslie to recover the taxes he had paid. The court determined that Gage was not entitled to recover rent from the date of the contract, but only from the time the decree for specific performance was rendered. As to Leslie’s rights, the court held that as the payment of taxes for 1923 was a lien on the city property when the decree was rendered he was not entitled to recover the taxes he had paid for 1923, amounting to $427.02. It was decided that he was entitled to recover the $228.22 which was the first half of the taxes paid for 1924 on the city property, and also that he was entitled to recover the 1923 taxes which he had paid upon the farm, amounting to $228.22. Leslie appeals from that feature of the judgment holding that Gage was entitled to rent on the city property and in denying to him a recovery for the $427.02, the taxes of 1923 paid by him on the city property.
From what time was the plaintiff entitled to rents and profits? A binding contract to convey the land was made under which possession was to be given to plaintiff August 11, 1923. It was determined that plaintiff was entitled to specific performance of that contract. Under it he was entitled to a deed and the possession of the property at the time named in the contract. It is well settled that the time of performance, and not the time when a decree is rendered requiring performance, fixes the time when plaintiff’s right to rents and profits attaches. The repudiation of the contract by the defendant and the delay caused by the litigation did not modify its terms nor change the right to the parties under it. If the contract is to be enforced at all it must be enforced as the parties have made it. Courts have no discretion to change contracts or to do
“The only remaining questions are those which relate to the rents and profits from the time when the purchaser became entitled to his deed. ■
“There can be but little controversy about the ordinary rules for the determination of these questions. Where the purchaser is ready and willing to perform, and the delay is on the part of the vendor, the purchaser is entitled to the rents and profits from the time when, according to the terms of the contract, possession should have been delivered, or, if the vendor has remained in possession, he is chargeable with the value of the use and occupation from the same period, and the purchaser is chargeable with interest on the purchase money if it has remained in his hands unappropriated. But where it has been appropriated, and notice thereof given to the vendor, and the purchaser has received no interest thereon, he is not liable to pay interest to the vendor.” (p. 423. See, also, Harper v. Battle, 180 N. C. 375; Miller v. Jones, 68 W. Va. 256; 36 Cyc. 789; Fry on Specific Performance, 5th ed., 1147; 25 R. C. L. 341.)
Objection is made by defendant that plaintiff was not entitled to specific performance or the recovery of rents until he had performed the conditions incumbent on him. It is argued that the deed tendered was not a sufficient instrument of conveyance, and that plaintiff was not entitled to the possession of the premises until a deed properly acknowledged had been deposited in the court. The deed was tendered before the action for specific performance was begun. In that action no objection to the form or sufficiency of the deed was made by the defendant. He defended on other grounds and performance was decreed on all the issues joined.in that action. The deed had been properly executed, and in fact had been acknowh edged by both of the grantors. As soon as the defect was discovered plaintiff had it corrected at once; besides, it appears that the deed as corrected was accepted by the defendant. The objection is technical in character, and it has been held that a right to specific performance cannot be made to turn on objections of this nature. (Harrell v. Neef, 80 Kan. 348, 102 Pac. 838.) If defendant was intending to rely on the defect he should in fairness to the plaintiff have called the attention of plaintiff to it, after which a reasonable time would have been afforded to correct the defect. Under the circumstances the objection of defendant was without substantial merit and did not constitute good reason for resisting performance or the payment of rent. (Niquette v. Green, 81 Kan. 569, 106 Pac. 270; Paul Co. v. Shaw, 86 Kan. 136, 119 Pac. 546; Cement Co. v. Washburn, 89 Kan. 874, 133 Pac. 156.)
As to the recovery of taxes there is little chance for contention. Since the plaintiff was entitled to possession and rent for the use of the property after August 11,1923, which was prior to the time when a lien for taxes had attached, it follows that plaintiff was liable for the taxes of that year as well as for those of 1924. (R. S. 79-2902.)