114 Kan. 393 | Kan. | 1923
The opinion of the court was delivered by
The action was one by a real-estate mortgagee to recover on a purchaser’s agreement to assume the mortgage. The plaintiff’s demurrer to the 'answer was overruled. He stood on the demurrer, judgment was rendered against him, and he appeals.
The answer, supplemented by a stipulation of the parties, disclosed these facts. Woelk agreed to convey by warranty deed to Bunyan. Bunyan agreed he would assume mortgages on the land and agreed to give other considerations. Woelk agreed to deposit the deed in a bank and to furnish an abstract showing merchantable title. When Bunyan approved the title, the bank was to deliver the deed, and the sale, which involved a number of details, was to be completed within a reasonable time. Before the contract of sale could be carried out, Woelk was devested of title by sheriff’s deed issued pursuant to ¿foreclosure of a mortgage superior to that of the plaintiff. Because Woelk could not make title, new negotiations were instituted, and a new contract was made whereby Bunyan took title from the sheriff’s deed holder. In this contract Bunyan assumed a part only of Woelk’s indebtedness to the plaintiff.
The plaintiff says that after a third person has accepted and acted
The judgment of the district court is affirmed.