*1 Clarence Respondents, et v. Van al., McMillion Appellants. S. al., et 118 W. City Appeals.

Kansas June Court *2 .. Raymond Prince, <& Beery James N. and Hume spondent. Dryden appellant. Burns, & L. T.

Bums Burras and Rufus on the cause CAMPBELL, petition, C.—Plaintiffs’ amended year tried, alleged in the 1930 were husband and was Independence, -property, of residential owners $6000; that value of Missouri, equity acres, 111 exchanged property for a farm of yéar they defendants, conveyed property Independence by the owned nominee; part that as a of the con- to defendants’ warranty deed exchange plaintiffs executed their note $6000 of said sideration Herman Reiek Triplett and secured the Yan A. mutually trust on the that it by a deed of thereof including belonging warranty papers, agreed that “said be with” bank and to released in escrow from left plaintiffs, defendants; joint demand the escrow transaction, declare plain- rescinded the thereafter interest, it; demanded vacate in'the hád no tiffs to release the the farm demand, refused deed to defendants, on from thereupon farm, demanded escrow vacated restitution of the refused property, residential which demand was to their loss in of $6000. the sum Amanda. answer defendants Arthur G. Hawes general

was a denial. every each and joined denying other defendants in an answer allegation petition. $30,00. a jury trial Plaintiffs on had a verdict and appealed. defendants have 1930, March, evidence shows that owned an property which was of value of on which there acre $1500; encumbrance on March owners it to Yan A. Herman Reick deceased, daughters Grumke, as trustee for four of Herman F. namely, Hawes, Reick and Triplett, Laura Emma M. Amanda J. Á. negotiations Yan Savage. Following

Ida between *3 agreed Triplett exchange properties was Reick, Herman H. of the and equity upon; $12,000; city prop- valued the the farm was at erty signed acknowledged Thereupon plaintiffs $6000. at and a deed grantee blank; in in name of the was left Yan the and wife Triplett, Triplett, Emma M. Herman H. Reick his wife and his terms, acknowledged signed which, by Laura J. Reick and a deed its to of expressed the farm for the consideration a plaintiffs signed $6000, payable time $6000. At the same note for 28, 1932, Triplett Reick, to Yan A.. and Herman dud March and signed acknowledged covering a deed for the and of trust the farm purpose securing payment of the note. the of parties agreed and note orally to the transaction the deeds Chrisman-Sawyer in the .There placed

would escrow with Bank. wife upon plaintiffs possession took the and Reick his and When became possession property. went into of the the note giving1 note, in 28, 1932, by a due due it was renewed new March years Savage and his thereafter, payable Triplett wife, and two wife, his When latter due wife. the note became his and Hawes thereof was a payment for consideration for the valuable March 1935. extended to Triplett August 6, 1934, wife on executed

Reick and wife they conveyed deed, by terms of to defendants warranty a an interest farm. wife undivided two-thirds Hawes his in day on date. thereafter recorded Soon its The deed was payment extend note plaintiffs he would of the be- Hawes told sought Plaintiff Clarence McMillion yond March Frazier-Lemke Act. of the Hawes provisions relief under petition pro- their n said and his wife filed wife and his March, 1930, in the then owners it was stated ceeding in which the farm but that the was not to a deed be- deed of the farm made $6000; paid MeMillion his sum of until wife delivered 28, 1934; that expired the time of the of said sum March ex- land had right bankrupt purchase said equitable failed longer to obtain pired “no exists.” MeMillion Hawes wife were named sought. Triplett and wife lief complaint in detainer in which it was unlawful in a detaining pos- wilfully alleged unlawfully and the McMillions were by Arthur G-. complaint farm. session was verified complain- agent cocomplainants. his The said and as himself attorney copy complaint ants a be delivered caused possession the farm Plaintiffs surrendered McMillions. February, effect that The evidence $2000; that property for the farm at exchange was valued in the knowledge city property was with the deed McMillions, Reick and and consent of made and delivered to n by parties day written; it was that it was intended note, farm were that the trust and deed interest evi- paid. pertinent in escrow Other evidence until questions presented dence will be stated in our discussion of the overruling say the demurrer to the court erred a petition ground on the it cause of amended failed state action. After the the defendants answered demurrer overruled waiving waiver, however, over does not thus the demurrer. The prive petition does not defendants of the to contend state facts sufficient to constitute cause action. [Baugher Co., 26 S. Gamble Const. 946.] *4 assignment points in their of errors nor in their authorities challenged sufficiency petition. of the defendant, evidence, close court

Each at the of the against requests plaintiffs. to verdicts refused. direct The were there, say they and his wife was no evidence that were Hawes exchange agreement by plaintiffs parties'to made with Reick; plaintiffs showing complied that was no evidence there requirements incumbent on them. with the conditions and say plaintiffs they com- The other defendants failed to show them;” plied requirement condition and that upon with “incumbent plaintiffs they not demand Reick that did and wife return the city property. Evidently

The of Hawes and contention wife cannot sustained. matter; in the were actors entire were renewal payees note; grantees August in the deed of that was "When deed were would not deed McMillions have recorded the to appeared bankruptcy pro- in the the farm. Hawes and wife title of exchange in effect the the debtors under the ceeding, said

329 - agreement expired had longer for himself Hawes “no exists.” complaint and wife verified the of unlawful detainer.

Herman Reiek testifying concerning while for the defendants only fact that Triplett signed he Van to said: acting agents (meaning Triplett) “We were the himself acting wives, agents pair we people. were the of the “Q. For who? A. Our wives. 1‘ Q. And else? A. who Mr. Hawes. And ‘‘Q. his ? And wife A. And his wife. ‘‘Q. Savage yes, Savage, And ? A. And Mrs. sir. Mrs. ‘ ‘ ’’ Q. And her her husband ? And husband. begin- jury every

The find- act of each defendant from the them, ning all end the transaction was the act from it any follows if defendant were liable that were liable. imposed perform conditions claim that failed agreement exchange upon upon by then! is based the fact fact, paid. note was not This contention overlooks evidently jury, was found that the debt evidenced the note 1935; 28, prior due March until fed- wife, appeared in the the deed from Reiek and wife received right- eral and denied had detainer, bring plaintiffs’ right thus deniéd threatened to unlawful ' March, 1935, title to the farm. debt receive debt due was prior These acts time the became done exchange agreement of the entitled repudiation Letchworth, damages. contract and sue rescind the for. [Norris 421;W. Ft. Smith Lumber App. Mo. 152 S. Chamberlain v. Co., 179 S. 740.] wifé for made on Reiek and demand was It is further claimed no not demand of Reiek or Plaintiffs property. of the return did made city property. Demand his wife return the farm return of delivery Mr. Hawes for property. demand refused. general were answers denials. open any of the of no demand Therefore defense S.R. [Sec. 1929.]. well verdicts requests directed were ruled. ease allowed whole covered the Instruction No. Plaintiffs’ finding hypothesized the facts jury a verdict requests, for directed' discussing- What we therein. *5 many the of -the criticisms instruction. of verdicts answer not are or answered the objections answered not (1) fully in- thus wrong- defendants acted find jury.to require not struction does suit; detainer bring the unlawful threatening (2) no fully title, right had plaintiffs that denied wife Reiek anfi evidence that possession to the find require jury of (3) 'the failed to (4) plaintiffs right had property; to demand return of the farm leaves question out the whether not vacated plaintiffs voluntarily. plaintiffs posses-

When paid part price of took purchase no sion there was acquired land; of farm they an interest agreement upon failure to that interest would forfeited proceed in un- price. the balance of The threat purchase right posses- of plaintiffs’ detainer denial title and lawful was a of ; wrongful sion was as a matter law. pos- title or deny plaintiffs

Did Reick and had Triplett were the owners session land? Reick and record to the they their wives made at the farm making accepting that act and wife. The of the defendants exchange agreement. repudiation of violation and deed was a us, them, before the defendants and each record Hence right in plaintiffs the farm. had denied jury for plaintiffs No. 1 a verdict Instruction allowed title finding, denied among facts, other “defendants farm, so; the defend- right to of said if and that possession plain- possession demanded farm threatened to sue ants wrongful damages alleged thereof and for possession tiffs yielded so.; if and that to defendants’ thereof, tention farm, possession possession and surrendered said demand for of said defendants, your . . .” then verdict should be thereof to the plaintiffs. repudiated the show defendants

It was incumbent on voluntarily, farm, not but surrendered the contract and wrongful because of acts if language plaintiffs’ No. 1 the effect that Instruction may yielded possession demands question whether or not the sur-

have been sufficient to submit the voluntary. However, plain in their words were so render was meaning harmless instruction on proper as to render the refusal of subject requested by the defendants. K in- defendants’ Instruction was refused. jury that found plaintiffs struction would have if it volun- told tarily moved from could not recover. jury finding

There was evidence sufficient to warrant wrong- voluntary, abandonment of not because of the defendants. ful conduct of plaintiffs endeavored to

The evidence with their shows settle debts; for less than amount of their creditors that Clarence G. into, seeking bankruptcy went McMillion relief to which he entitled; plaintiffs were in was not default sought legal taxes; advice and were told interest *6 may be detainer; and it in unlawful an action successfully defend balance pay the unable to they would be concluded For from the transaction. price therefore withdrew purchase given. K have been should Instruction these reasons refused, said Q, the court requested Instruction Defendants verdict should farm-the from the voluntarily moved that if though for the time even for March, 1935. extended to been note had $6000 not could voluntarily abandoned If not due. The was or was the note action whether maintain the. the instruction. were entitled

fendants could M said Instruction Defendants’ note had not been extended payment of the time of recover if March, 1935. reason even refused properly The instruction acting within their were not though due defendants Was debt right in the had title denying plaintiffs in obliga- repudiating right by plaintiffs’ not work forfeiture of exchange contract. by the imposed tions on them inventory in part of the evidence a

Plaintiffs introduced in Grumke, F. deceased. of Herman estate testimony, tended show evidence, with the oral This taken consideration daughters furnished the four of said deceased them, and. conveyance of the farm the husbands of two paid the purchase title in trust for those who that said held husbands received. price. properly The evidence was concerning the to receive the evidence proper

It certain threatened unlawful detainer suit which' of- the defendants bring. evidence, relating to- occurrences That the evidence August making bankruptcy proceeding, acting erroneous as- tended show defendants were 28, 1934, for- on March sumption note that the failure right plaintiffs had the farm. any feited 2.No. argument

In criticize Instruction plaintiffs’ the defendants assignment to in of errors or That instruction is not referred argument. will therefore consider the points authorities. We separately plaintiffs’ re- and wife at close evidence against' plaintiffs. requests quested be directed were verdicts refused, thereupon announced would stand record shows any not offer evidence. The on their demurrers would be-, testified on were called and thereafter numerous witnesses were therefore half of entitled the defendants. elicited in the any them

benefit of evidence favorable testified on be- witness who . examination or cross-examination ruling requests separate di- So half of the considered evidence. we have verdicts, rected 332: stated, For is reversed the cause the errors Sperry,: G., concurs.

manded. adopted PER Campbell, C., CURIAM: —The foregoing opinion is *7 opinion a's the court. The cause is reversed remanded. All concur.

Prescott, Mellody-Mc Wright, Company, Appellant, Snider Respondent. Gilley S. W. Funeral al., Home et City Appeals.

Kansas Court of June John G. Loos appellant.

Franklin- D. Glore respondent.

SHAIN, plaintiff P. J. —In this action the seeks to recover special against —, Park, tax Kansas* bills issued' lot Linwood block City, Missouri. $919.02, petition Plaintiff ’s is in two counts.' The first count is for- ** special1 proportionate

based a for- tax bill share cost public city, paving Boulevard, of aforesaid from the Linwood street prolongation line" south east curb of Gillham Road Boulevard; Boulevard, line- -north of LinWood east of Benton'