1 Kan. App. 666 | Kan. Ct. App. | 1895
On the 19th of August, 1889, C. C. McDowell filed in the probate court of Chase county his petition setting forth his claim against the estate of John McDowell, deceased, and a demurrer to the said petition having been overruled, a hearing was had by the probate court, and said claim was allowed. The judgment and order of the probate court were appealed from to the district court of said county, where the demurrer filed by the administrator of said estate was sustained. Thereupon the plaintiff took leave to amend his petition, and the district court, having sustained a demurrer to said amended petition, plaintiff elected to stand upon the petition as amended, and brings the case here for review.
The allegations of the plaintiff’s amended petition were in substance as follows : That the plaintiff, C. C. McDowell, and John McDowell, deceased, were the sons of one Charles McDowell; that on the 3d day of April, 1883, said Charles McDowell was the owner of two tracts of land, which are described in the said petition, and which for convenience will be here referred to as the first and second parcels of land. The petition further alleges that on July 26, 1881, there existed a mortgage on the first parcel of land of which there was due and unpaid the sum of $1,000 ; that on said date Charles McDo-well procured a loan of $1,000 from one D. K. Carter to pay off said mortgage ; that as a security for said sum of money the said Charles McDowell executed a note and mortgage upon the second parcel of land ; that the money realized from the loan was used to pay off the lien theretofore existing on the first parcel of land, and that the said lien was thereby discharged and satisfied ; that on the 3d day of April,
The demurrer to the petition is based upon three grounds : (1) That the petition does not state facts sufficient to constitute any cause of action against said administrator; (2) that there is a defect of parties plaintiff; (3) that there is a defect of parties defendant.
We are of the opinion that the demurrer was improperly sustained. The first contention of counsel for defendant in error is that the allegations of the petition set forth a parol contract not to be performed within a year, and that said agreement is not taken out of the statute so far as this plaintiff is concerned, even though the consideration was the sale of lands which were conveyed to the decedent, John McDowell. The original agreement was between three parties, Charles McDowell, C. C. McDowell, and John McDowell. By its terms Charles McDowell conveyed to each of the other parties a certain tract of land. In consideration of the conveyance to John McDowell, he, the said John McDowell, agreed to pay to C. C. McDowell one-half of the amount of a certain mort
‘ ‘ Where a verbal contract is completely executed by one party, the consideration can be recovered from the other, notwithstanding the statute of frauds. As, for instance, when a deed of land is given, or goods delivered and accepted, in pursuance of the contract, an action lies to recover the value of the land or goods; and the same where a contract is within the statute, as being not to be performed within a year from the making, but has been fully performed on one side, whether within the year or not; the consideration of that performance, though by the contract not payable until after the expiration of the year, may be recovered by action when the stipulated time arrives.”
‘ ‘ This contract was also performed within one year upon the part of plaintiff, and the defendant cannot claim protection under the statute of frauds ; its protection extends to executory contracts, and does not apply to contracts that have been executed by one party.”
It is true that, in the case at bar, the plaintiff was not the one who furnished the consideration by deeding the land; but, according to the allegations of the petition, the rights of the one so furnishing the consideration, to wit, Charles McDowell, ■were assigned to the plaintiff, and John McDowell consented and agreed that payment should be made to plaintiff instead of to Charles McDowell. It needs no citation of authorities to support the proposition that a conveyance of land by one person to another is sufficient to support a consideration agreed to be paid by the grantee to a third person, the same as though payment was to have been made to the grantor himself. The petition in this case shows that John McDowell not only took possession of the land conveyed by Charles McDowell under this agreement, but that he died seized of the same ; that he paid his proportionate share of the interest annually until his death. Nor does the fact that when the original mortgage be-' came due it was renewed for a further period of five years, change the position of the parties in this case, under the allegations of the petition. A renewal under such circumstances was not a payment of the
We do not consider the petition as alleging a contract for the sale of land, but rather an action brought for the recovery of the price of land actually conveyed. ‘ ‘ There is no provision of our statute which precludes a recovery for the price of land actually conveyed, even though the agreement concerning the price be oral.” (A. T. & S. F. Rld. Co. v. English, supra.)
The defendant in error further contends that there was a defect of parties both plaintiff and defendant. We cannot agree with the proposition of the defendant in error in this particular. When the original agreement was made and when the renewal of the mortgage in question was made, it seems to us, under the allegations of the petition, that all other parties were eliminated, excepting C. C. McDowell, the plaintiff in this action, upon the one hand, and John McDowell upon the other. Certainly Charles-McDowell was no proper party to this action, for he had assigned his 'interest in the consideration which was to be paid for the land by John McDowell to C. 0. McDowell, and could not therefore have recovered the same himself; nor was the mortgagee a proper party to the action, for the agreement of John McDowell was not one to pay the mortgage or a part thereof to the mortgagee, but it was to pay the plaintiff a sum equal in amount to one-half the mortgage debt. . We cannot think that a contract like the one alleged in-this petition was ever- intended to be covered by the statute of frauds.