100 P.2d 685 | Kan. | 1940
The opinion of the court was delivered by
This was a suit in equity to determine the rights of the parties under an option-to-purchase contract pertaining to real property, and for an appropriate decree. The trial court found defendant had breached the conditions of the contract to be performed
More specifically the facts may be stated briefly as follows: Plaintiffs, being the. owners of the real property involved, on March 12, 1924, entered into a written contract with Mary'E. McMahon by which, in consideration of $1,000 then paid, they gave to her the option for one month to purchase certain described real property in Wyandotte county for $6,500. The agreement provided the option might be renewed from month to month by the payment of $40 (later reduced to $30) on or before the 12th day of each month. The optionee was entitled to go in possession of the property, but if she did so was to pay the taxes and the special assessments as they became due and to pay for insurance on the property in a stated sum. Time of these payments was made of the essence of the contract. The optionee was not obliged by the contract to make any payments. At no time were the payments to be more than two months in arrears, and if they became so the rights of the optionee ceased and she agreed to surrender possession of the property to plaintiffs, and that all payments previously made and all improvements placed on the property by her should be forfeited to plaintiffs as liquidated damages. Mrs. McMahon went into possession of the property and paid the taxes to and including the year 1933, and she, or defendant as her successor in interest, paid the monthly payments to keep the option in force until August 12, 1937. In the meantime Mrs. McMahon died, and in June, 1937, her daughter, the defendant herein, and plaintiffs executed the following instrument:
“The undersigned agree, that Josephine Graff as assignee and successor of Mary Ellen McMahon, deceased, and as the second party to the annexed option contract, shall pay to the first party, C. E. Hively and Lu Ettes Hively, at the Victory State Bank of Kansas City, Kansas, all sums necessary to restore, place and keep said option contract in force according to its terms, and shall also pay all of the unpaid taxes and assessments on said real estate in said contract described; that second party shall make such payments by ■-- 12, 19-, and that thereupon the annexed option contract shall be and continue in force between the undersigned (except as hereby modified), in accordance with the terms thereof.” - .
On November 16, 1937, plaintiffs served notice upon defendant for the purpose of terminating the option agreement. This action was filed December 2, 1937.
It next is contended by appellant that in view of the fact that more than half of the purchase price had been paid, the court erred in forfeiting the contract; that it should have been treated as a mortgage, plaintiff should have been required to foreclose it as such, and the court should have granted appellant eighteen months in which to redeem, and possession of the property during that time.
We find no error in the record. The judgment of the court below is affirmed.