47 Kan. 757 | Kan. | 1892
Opinion by
On the 16th of June, 1887, the plaintiff, Kimball, sold to the defendant, Bell, blocks 7 and 31 in Getty & Larkin’s addition to the city of Ellsworth, and gave him a title bond therefor, in which he agreed to execute and deliver to Bell, upon the payment by him of the purchase-money therein named, a good and sufficient warranty deed, conveying an absolute and indefeasible estate in fee-simple to said blocks of land. Having made the last payment on said land, Bell demanded of Kimball a deed therefor on the 5th of January, 1889. On the 17th of the same month suit was begun by Bell to recover back the purchase-money, alleging that Kimball had failed to comply with the conditions of his bond by giving deeds. The case was tried April 22, 1889, by jury. A demurrer to the evidence was interposed by Kimball, but it was overruled. The jury found for the plaintiff below. Motion for a new trial was argued and overruled.
The first contention of the plaintiff is that the demurrer to the evidence should have been sustained. This contention is based upon the theory that the plaintiff having brought this suit to recover back the purchase-money, upon the alleged failure of the vendor to comply with the conditions of his bond in relation to the title, the plaintiff must show that the deed tendered by the vendor as a compliance with the conditions of his bond did not in fact convey a good and indefeasible title in fee-simple to the blocks sold, before he can recover; and that simply proving that an unsatisfied mortgage was on record against the blocks did not constitute such a showing, because a mortgage might be unsatisfied of record, and yet be fully paid; and because of this it was the duty of the plaintiff below to have shown that the mortgage had not in fact been paid, because if the mortgage had in fact been paid,
We agree with counsel for plaintiff in error that, to make a case, the plaintiff below must have shown that the deed tendered him before suit brought did not convey a good and indefeasible estate in fee-simple. But we think the plaintiff below did show that, at least prima facie, when he showed that there was of record an unsatisfied mortgage against these blocks. We think the law is well settled that the vendee is not required to accept a deed, though in form a warranty, stipulating that the land is free from all incumbrances, when there is a cloud upon the title in the shape of an unsatisfied mortgage of record. Though a deed in proper form has been tendered, the vendee seeking to recover back the price paid for land may justify his refusal of said deed by showing an unsatisfied mortgage of record against the land. In Durham v. Hadley, ante, pp. 81, 82, Chief Justice Horton, speaking for the court, says:
“It is undoubtedly true that, where an incumbrance is discovered upon land, the vendor must discharge it before he or she can compel the payment of the purchase-money by the vendee at law or in equity. In this case, it is claimed that no incumbrance existed, because the mortgage had been paid; but the records in the office of the register of deeds show no release and no payment to any party having authority to release or accept payment. . . . Mrs. Bowen ought, before she made her contract, or offered her deed, or at least before this action was brought, to have had Charles H. Thompson release on the record the mortgage of $834 and all interest, if it is paid, or she ought to have had the written assignment of the mortgage to Benj. F. Jewett recorded, if Jewett was ever the legal owner thereof. She did none of these things, and none of these things have yet been done. The title is clouded with an apparent incumbrance. . . . The facts are, that Durham could not and cannot obtain a good marketable title. He cannot be compelled to accept any other.”
This the plaintiff below did in this case. He showed an unsatisfied mortgage against the land sold to him. He was not
It was decided in O’Neill v. Douthitt, 40 Kas. 689, that “ where an abstract of title shows that a mortgage on the land has been recorded, it is then necessary, in order that the abstract shall show a good and complete title, that it shall also show that the mortgage was not only released and discharged of record, but also that the person releasing or discharging the same had full and complete authority of record to do so.” (See, also, Durham v. Hadley, ante, p. 73; same case, 27 Pac. Rep. 105.) If a release of the mortgage, so far as the southeast quarter of section 17 was concerned, was to be found in the book referred to in said memoranda on the margin of the mortgage, it could easily have been introduced in evidence by the defendant below. We do not think the record shows the defendant below was in a' position, even at the time of the trial, to give a good and indefeasable title in fee-simple to the blocks of land described in his title bond. (Durham v. Hadley, supra.)
It is claimed by the plaintiff herein that the case was tried by the court below on a wrong theory; that the court tried the case all the way through upon the theory that time was of the essence of the contract, and that the vendee might demand a deed immediately upon the payment of the last installment of the purchase-money, and if the vendor failed to respond therewith at once the vendee was at liberty to immediately bring suit for the purchase-money. This may be true. There
We think the case must be affirmed. It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
