40 Kan. 552 | Kan. | 1889
The opinion of the court was delivered by
It seems to be admitted aud was in effect found by the court below, in finding number 10, that the plaintiffs cause of action, if he ever had any, has not been barred by any statute of limitations. The only question then to be considered is, whether the plaintiff ever had any cause of action. It seems to be contended that the plaintiff never had any cause of action, and this for the reason that the contract between the original parties was not mutual, and that there was such an unreasonable delay on the part of Adam Towler and his successors in interest, including the plaintiff, in procuring the quitclaim deeds mentioned in the contract, that the final procuring of such deeds and the tendering of them to the defendant, and his refusal to then pay the amount agreed to be paid, did not constitute any cause of action. It seems to us that this contention is wholly untenable. Towler sold the entire land to the defendant, and not merely a part of it; he sold it for the sum of $867.50, and not for the half of that sum. He executed a deed for the whole of the land, and not for a part thereof; the deed expressed the entire consideration of $867.50, and not any less sum; the deed was a warranty deed; and, unless the title is made good to
It is also claimed that the defendant is relieved from fulfilling his contract for the reason that one of the quitclaim deeds was not made directly to the defendant, but was made to John W. Hartley, and that Hartley afterward executed a quitclaim deed to the defendant. Now the contract does not say to whom the quitclaim deeds should be executed, but the substance of the contract is, however, that the defendant should receive in some manner all the title or interest in the land which was owned or claimed by William Hartley and the two brothers of Hartley Bannister. Now quitclaim deeds from the above-mentioned persons, either to Towler or to the defendant, would have accomplished that result; for under the warranty deed from Towler to the defendant all after-acquired titles or interests vesting in Towler would inure to the benefit of the defendant. Also, quitclaim deeds executed in the manner in which the quitclaim deeds in the present case were executed would accomplish the same result. The defendant has, in effect and in substance, received all that he contracted for, and he has now no reason to complain.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the plaintiff and against the defendant for the amount claimed, and for the foreclosure of the mortgage.