114 Kan. 609 | Kan. | 1923
The opinion of the court was delivered by
The defendants appeal from a judgment in favor of plaintiff for $7,000, as damages for failure to specifically perform a contract for the exchange of tracts of land.
It was alleged and sufficiently established by evidence that S. A. Hoppas, who owned 160 acres of land in section 33,' township 4, range 28, orally agreed with Fred Bremer to exchange it for 160 acres owned by Bremer three or four miles away in section 29, of the same township and range. To equalize the values of the tracts Bremer agreed to allow Hoppas $500 as boot money which was to be applied as a credit upon an indebtedness of long standing owed by Hoppas to Bremer. Shortly after the agreement and in May, 1917, Hoppas in compliance with his part of the agreement executed and delivered a deed of the land in section 33, -to Bremer, which he
The first contention made by defendants is that the plaintiff failed to state a cause of action in that it was based upon an oral agreement for the conveyance of real estate and that no such part performance had been pleaded as would take it out of the statute of frauds. In his petition plaintiff alleged payment of the purchase price, the taking of possession of the land under the agreement and the holding of such possession for about four years under the specific agreement that plaintiff should occupy and use the land as his own. It was alleged by plaintiff that in addition to the payment of the purchase price and the taking possession and using the land under and upon the faith of the oral agreement, he had paid the taxes levied thereon and had complied with every condition of the agreement. Under the facts pleaded there was not only full payment of the purchase price of the land, but in addition there was possession ' and use of it given to plaintiff. That possession it was alleged was taken on the faith of the oral agreement and the ownership and right of plaintiff to occupy and use the land as his own was recognized and agreed to by the defendant for about four years. The possession held was notorious, continuous and exclusive. In view of the long period of such possession, the acknowledgment by defendant of plaintiff’s ownership and other circumstances that have been related, it would be inequitable to allow the defendant to escape the fulfillment of his oral agreement under cover of the statute of frauds. The circumstances of the case are such as to constitute part performance sufficient to avoid the statute. (Edwards v. Fry, 9 Kan. 417; Baldridge v. Centgraf, 82 Kan. 240, 108 Pac. 83; Smethers v. Lindsay, 89 Kan. 338, 131 Pac. 563; Witt v. Boothe, 98 Kan. 554, 158 Pac. 851.) It has been determined as defendants contend that payment of the purchase price alone is not sufficient and also that
Other objections are raised to the judgment, but in view of the action of defendants in offering to convey the land to plaintiff and the effect of the offer, the objections are not deemed to be material to the disposition of the case. Plaintiff asked for specific performance of the agreement, and the court found that he was entitled to performance and that defendant should be ordered to execute and deliver to plaintiff a warranty deed with an abstract showing merchantable title, upon the payment by plaintiff of $3,500. Because the defendant had previously conveyed the land to another, the court held that it could not decree specific performance, and therefore it awarded damages in place of performance. But can it be said that performance was impossible? The defendant had filed in the court deeds which if accepted would have transferred title to the land in him and have given plaintiff the equitable relief for which he asked. According to the indorsements made by the clerk of the district court on the original papers, it is made to appear that the deeds were filed in the district court on February 13, 1923, and that they were accompanied by an abstract showing good title to the land. These were not filed until after the court had announced his findings on the principal questions in the case, but they were in the custody of the court three months before the judgment of the court was rendered. It is said in argument that the tender of the conveyance by the defendants was not brought to the special attention of the court when they were filed but the record does show that
The judgment should therefore be modified to the extent of vacating the award of damages and directing specific performance of the agreement by the defendants upon the payment to them by plaintiff of $3,500, the sum tendered before the action was brought. Since the defendants resisted performance, it is equitable that all costs incurred in both cases should be adjudged against them. So modified the judgment will stand affirmed.