The opinion of the court was delivered by
Johnston, J.
*106i. vendor and “SS contract?' *104: The record discloses that Me Alpine obtained only an option for the purchase of the Reich - eneker land, of which Helen C. Reieheneker, the widow of Nelson A. Reieheneker, deceased, owned a interest, while the remaining interests were bwned by the minor children. When the agreement was made, in April, 1887, no authority to sell the land had been procured from the probate court by Mrs. Reieheneker, but the following month an order was made by the probate court conferring upon her the right to sell the land. It was found by the^ court that the personal property belonging to the estate was insufficient for the payment of the debts thereof; that, a division of the property could not be made without injury to that remaining, and that it would be most beneficial to the estate that the whole tract should be sold. It was *105therefore ordered that it should he all sold at private sale, one-third of the price to be paid in cash, one-third to be paid in one year thereafter, and the remaining one-third in two years from the date of sale, the deferred payments to bear interest at the rate of 8 per cent, per annum; and it was ordered that the purchaser should give a mortgage upon the land to secure the deferred payments. Provision was made that it should be appraised as the law requires, and that it should not be sold for less than three-fourths of its appraised value. Under the contract with McAlpine, she agreed to give him the exclusive right to purchase the tract of land, estimated to contain 50 acres, for a limited time, at $2,000 per acre. One-third of the price was to be paid on or before six months, and the remaining two-thirds in two equal annual payments, drawing interest at the rate of 7 per cent, per annum, to be secured by a mortgage upon the property. For the option he made a cash payment of $1,500, was to pay $1,500 more, within four months, and if the first one-third of the purchase-money was paid within the specified time, the $3,000 advanced for the option was to be credited to the plaintiff as a part of the purchase-money, but it was to be forfeited to the defendant unless the first oné-third payment was made. The arrival of the time when the first payment was to be made found him unprepared to meet it, and the defendant then, for a consideration of $1,000, gave him additional time within which to meet the payment. From his own testimony it appears that he was unwilling and unprepared to perform his obligation withip the extended time. He was negotiating the purchase of a large tract of other and adjoining land, and he did not desire to take the Reicheneker land unless he could also obtain the *106adjoining-land. Although he utterly failed to perform his part of the agreement, he seeks to recover the money which it was stipulated should be forfeited in the event of such a failure. It is now insisted that as Mrs. Reicheneker failed to tender an abstract of title within the- specified time, did not produce to plaintiff's attorney the authority to convey the land, and did not- procure the' measurement of the same, she was first in default,' and therefore the plaintiff was entitled to have the money advanced refunded. While the agreement required her to furnish an abstract of title within 30 days, it is clear that this condition of the contract was waived by the plaintiff. He made two payments to her, and procured an extension of time to make other payments several months after the time when the abstract was to be furnished. He says that he was well acquainted with the title to the land, and his conduct shows that he deemed the provision relative to an abstract to be immaterial, and both of the parties treated the contract as still in force until after the lapse of the extended time. The performance with reference to abstract Was effectually waived by the plaintiff, This was the only' condition precedent incumbent upon the defendant to perform. It is true plaintiff insists that the failure of the defendant to tender a deed placed her in default, and required her to refund the money advanced; but no deed was required until the first one-third payment was made by the plaintiff. The case is argued by him as if the defendant had instituted an action to compel the payment of the- first installment, and that it devolved on her to put him in default. He is the moving party, and cannot put her in default except by a performance or offer to perform on his part, *107(Morrison v. Terrell, 27 Kan. 326" court="Kan." date_filed="1882-01-15" href="https://app.midpage.ai/document/morrison-v-terrell-7885603?utm_source=webapp" opinion_id="7885603">27 Kan. 326 ; Soper v. Gabe, 55 id. 646 ; 41 Pac. Rep. 969.)
2- proceeding * presumption, He further contends, however, that she was unable to convey a title, there being no order of the probate court at the time the agreement was made authorizing the sale, and because the order- subsequently made did not conform to the contract made between the parties. He argues that for want of power the contract was invalid, and the money paid should therefore be refunded. The contract cannot be treated as wholly void. The defendant-owned a interest in the land in her own right, and she obtained from the probate court authority to make a sale and to convey the entire title to the land. She did not obtain direct authority from the court to sell the land to the defendant at a stipulated price, regardless of statutory requirements, but of this the plaintiff has no cause to complain. He knew the condition of the title, and knew that a sale could only be made with the permission and authority of the probate court, and therefore he is held to know that it could only have been made in the manner prescribed by the statute. Both of the parties appear to have been somewhat mistaken as to the legal procedure, but manifestly both contemplated that a title was to be obtained through legal proceedings in the probate court. The order made by the probate court prescribes conditions substantially in accord with those of the contract) and evidently was obtained with a view of carrying out, so far as the statutes permitted, the agreements of the parties. They knew or must be held to have known that an appraisement was required, and that the land could not be sold for less than three-fourths of its appraised *108value, and also that other steps prescribed by the statute could not be dispensed with.
*109a. Termination payment!01 *108The interest rate named in the order differed slightly from that specified in the contract, but that might have been modified, and if not, the defendant could have made provision for that out of her own interest. There was no misrepresentation by her respecting the state of the title nor in regard to her right to convey. There is nothing to show that she could not have been placed in a position to convey the land to the plaintiff on December 31, 1887, or even at an earlier date. An appraisement of the land might have been procured under which such a sale could have been made as the statute allows, and such as both of the parties contemplated. She was always ready and even anxious to sell and convey the land to plaintiff up to the termination of the contract, and for months afterward. No objection to the sale was made by the heirs or by anyone interested in the transfer, and an opder for the sale and conveyance was granted by the court. The sale was not defeated on account of any obstacle thrown in the way by the owners of the land or by the probate court. It failed because the defendant was unwilling and unprepared to perform on his part, and this is fairly disclosed by his own testimony. He never complained that an abstract of title had not been tendered, nor of any failure on her part, until long after he had made default and the contract had been terminated. Payment of the first one-third of the purchase-price, which amounted to about $30,000, was never tendered by him, and it is evident that he was never in a condition to make a tender. Instead of requesting performance on her part, he was seeking for delay, and' he even went so far as to pay an addi*109tional $1,000 to obtain a further delay or extension of a little more than two months. He was clearly in default on the last day of December, 1887, and the monev which he had advanced had been forfeited by reason of his own delay and fault. For a period of more than two years he seems to have treated the money as forfeited, because no steps were taken by him looking to a recovery of the same until the latter part of April, 1890. In this action he has failed to show any right of recovery, and the court committed no error in directing a verdict in favor of the defendant.
Judgment affirmed.
All the Justices concurring.