Hartshorn v. Smart

73 P. 73 | Kan. | 1903

The'opinion of the court was delivered by

Smith, J.:

This was an action of ejectment brought by defendant in error for the recovery of the possession of 160 acres of land, alleged to have been withheld by Hartshorn. Smart had judgment in the court below. He rested his title and right to recover the land on a deed from one Griffith. Defendant below claimed under a contract executed by one Sample, the agent of Griffith. The agreement was as follows :

“Kingman, Kan., Dec. 1, 1900.

“Received of J. S. Hartshorn fifteen dollars ($15), part payment for a good and sufficient ex tax deed title to the southeast of twenty-five-nine, Kingman, Kansas. The balance, $455, to be paid when the title is so furnished by present owner. If for any cause the title cannot be completed the $15 is to be returned to J. S. Hartshorn. O. "W. Sample.”

The district court held that the memorandum did not satisfy the conditions of section 3174, General Statutes of 1901, relating to frauds and perjuries, the relevant part of which reads :

“No action shall be brought whereby to charge a party, . . . upon any contract for the sale of lands, tenements or hereditaments, or any interest in _ or concerning them; . . . unless the agreement " upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

It will be readily seen that the contract does not describe the land. The only description is ‘ ‘ southeast of twenty-five-nine, Kingman, Kansas.” We judicially know that there are both a county and city of Kingman. Whether the property is in the county or the town is uncertain. Whether the “twenty-five-nine” refers to lot twenty-five, block nine, or section twenty-five, township nine, we can only conjecture. The words “Kingman, Kansas,” would tend to the conclusion that the city of Kingman was meant. (Fry v. Platt, 32 Kan. 62, 3 Pac. 781; Ross v. Allen, 45 id. 231, 25 Pac. 570, 10 L. R. A. 835; Reid v. Kenworthy, 25 id. 701.)

In Fry v. Platt, supra, the memorandum did not show the nature of the deed which the vendor contracted to make, and this fact was the subject of comment by the court. Here the conveyance contracted to be given was a “good and sufficient ex tax deed title.” This is unintelligible. To help out the agreement, parol evidence was necessary to show where the land was situated, and what kind of a deed the vendor contracted to execute and deliver.

The taking possession by plaintiff in error and fencing the land are urged by his counsel as a part performance by him, sufficient in law to validate an oral contract of sale. The proof showed that Hartshorn went into possession in 1897 under a tax-sale certificate, and that he took out a tax deed on the land in September, 1900. This action was begun in May, 1891. In Pomeroy on Specific Performance of Contracts, second edition, section 123, it is said:

“It follows, therefore, that if the possession is not connected with the contract, but is referable to some other cause ; (2) or if it can be naturally and reasonably accounted for upon some supposition other than that of a contract, it will not be a part performance. (3)”

See, also, Browne on the Statute of Frauds, fifth edition, section 476.

The judgment of the court below will be affirmed.

All the Justices concurring.