Keepers v. Yocum

84 Kan. 554 | Kan. | 1911

The opinion of the court was delivered by

Porter, J.:

The, first contention is that the contract is void under the statute of frauds, because the Missouri land is not more definitely described in the memorandum. The language of the contract is as follows: “J. C. Keepers agrees to deed or cause to deed his 114 a. in Vernon county, Missouri, subject to encumbrance of $2500 and accrued interest.” The appellants rely upon the case of Hampe v. Sage, 82 Kan. 728, where the land was described as “seven hundred and sixty acres located in Pottawatomie county, Oklahoma” (p. 729), and a petition declaring upon a contract for the conveyance of land thus described was held demurrable. The two cases are quite dissimilar. The memorandum there contained no statement that the land was owned by the vendor. Here the memorandum in substance describes the land as 114 acres in Vernon county, Missouri, belonging to J. C. Keepers. In Hampe v. Sage the familiar principle is recognized that parol evidence is admissible to apply the description, but not to supply it; but the doctrine is likewise recognized that a very indefinite description will be held sufficient if it states that the land belongs to one of the parties and it is shown from outside evidence that such party owns but one tract of this kind or character, citing Bacon v. Leslie, 50 Kan. 494; White v. Breen, 106 Ala. 159; Hurley & another v. Brown, 98 Mass. 545; and 20 Cyc. 271. (See, also, Hollis v. Burgess, 37 Kan. 487.)

For another reason the appellants’ contention must fail. A defective description of land in a contract of this kind may be cured by putting the purchaser in possession; that is, the parties may by their own conduct under the contract render certain what might otherwise be deemed uncertain. (Brown v. Ward, 110 Iowa, 123; Work v. Welsh, 160 Ill. 468; The Ottumwa, Cedar Falls & St. Paul R’y Co. v. McWilliams et al., 71 Iowa, 164; Engle v. White, 104 Mich. 15; 36 Cyc. 595, and cases cited in note.) The finding of the court, which appears to be sustained by the evidence, is that the appellee placed the appellants in possession of the land in Missouri within a few days after the contract was entered into, and they continued in the possession thereof until this action was brought. They disposed of a team of horses and other personal property included in the contract, received the owner’s share of the crops raised on the land, and did all of these things after they knew that the legal title to the land stood in the name of Florence N. Briggs, and also aftér they knew that there were certain apparent defects in the title of the appellee -which required attention.

We think the evidence warranted the finding of the court that there was no fraud or misrepresentation on the part of the appellee concerning any matter which induced the making of the contract. The particular fraud relied upon in the cross-petition is that the appellee represented himself to be the owner of the Missouri land when in fact the legal title stood in Florence N. Briggs, and that there were liens upon the land in addition to the trust deed mentioned in the contract. He was, however, as the court found, the equitable owner, and it made no difference to the appellants where the legal title stood at the time the contract was made, because the contract provides that the appellee will either deed or cause to be deeded the land to the appellants.

Nor can the appellants justify their refusal to perform their contract because there was a small lien upon the land which was not mentioned in the contract. The court’s decree protects them by providing for the satisfaction of this lien. The encumbrance being discharged out of the purchase money, the appellants have no cause to complain. (Guild v. Railroad Co., 57 Kan. 70; 36 Cyc. 739.)

In fact, the appellants’ conduct in taking and retaining possession of the land after they knew the condition of the title is an answer to all the objections which they make to the performance of the contract. It is claimed that there was a shortage in the land. In the opinion of the trial court there was no shortage shown by the evidence. The appellants claimed, however, a deficiency of two and a half acres, which the court held to be inconsiderable compared with the number of acres contracted for, but in the decree protected the appellants by abating the purchase price in the sum of $125 as full compensation for the alleged deficiency. The action of the court in this respect was in accordance with firmly established principles of equity. Where, in actions of this character, the title proves defective to an inconsiderable part the court will decree specific performance with a ratable deduction of the purchase money by way of compensation. (Maupin Mark. Tit. Real Estate, 2d ed., § 325; 36 Cyc. 738, and cases cited in note 66.)

The contract entered into between the parties makes no provision for the furnishing of an abstract of title, nor does it provide that the appellee shall furnish a good record title. In such cases it has been frequently held that the vendee may be compelled to accept a title depending upon adverse possession, when free from doubt. (Tewksbury v. Howard et al., 138 Ind. 103, 110; Stevenson et al. v. Polk et al., 71 Iowa, 278; Conley v. Finn, 171 Mass. 70; 36 Cyc. 641.)

There are some objections to the manner in which the appellee’s title to the land was established by the proof, but in view of the real issues raised by the pleadings and the theory upon which the cáse was tried these are not regarded as affecting the substantial rights of the parties.

The judgment is affirmed.