57 Kan. 279 | Kan. | 1896
The Citizens’ Bank of Wichita brought suit against Grant A. Hatfield and wife and James McKinstry and wife on a note for $3,148 and interest, and to foreclose a mortgage on certain lands therein' described, alleged to have been executed by the defendants Hatfield and wife, in person, and by the defendants McKinstry and wife, by W. R. Colcord, their attorney in fact. McKinstry and wife answered alleging ownership of an undivided half of the lands described in the petition, but denying the execution of the note and mortgage and the authority of any person to execute such note and mortgage for them. The plaintiff claimed the note and mortgage by assignment from Butler & Fisher. Hatfield and wife
The contention of the plaintiff in error is that Col-cord was never authorized to execute the note and
We are not furnished any brief by the defendant in error, nor has any oral argument been made in its behalf. It is apparent, however, that the plaintiff in error seeks to retain the benefit of the contract made in his behalf by Colcord and to repudiate the burden. This he cannot do. He must either accept or reject the transaction as a whole. If he retains the land, as by his answer he claims the right to do, he must pay for it according to the terms of the contract under which he got title to it. This is in accordance with the plainest and best established principles of equity. The plaintiff cannot ratify so much of the transaction as is beneficial to him and reject so much as is burdensome. An entirely different question would be presented if, when informed of the contract, he had tendered a reconveyance of the land and demanded a return of the purchase money. Nothing of this kind was attempted. The deed itself, under which he claims, shows the consideration paid to have been $8,148. There is no claim that more than $5,-000 was paid in cash, and Hatfield and Colcord, who assumed the right to act and did act in McKinstry’s behalf, executed the mortgage in controversy for the balance. Conceding that the mortgage was utterly void when executed so far as McKinstry was concerned, when he accepted the conveyance of the land and asserted title to it, he ratified everything that his
The judgment is affirmed.