38 Kan. 432 | Kan. | 1888
Opinion by
Two assignments of error are strongly insisted on; the first being the ruling on the motion to strike out and dismiss the second cause of action set out in the amended petition, and the other being the ruling sustain
I. The action as originally commenced in the district court of Allen county was one to rescind a real-estate contract, whereby the plaintiff in error exchanged real estate situated in the city of Humboldt, in Allen county, for farming land situated in the state of Missouri. The plaintiff in error (plaintiff below) was a resident of Allen county; the defendants were residents of Lawrence, Douglas county. The exchange had been consummated by the execution of warranty deeds to the property by each of the parties, long before the action was commenced. The action was properly instituted in Allen county, because a part of the property exchanged is situated in that county, (Code, §46;) and a summons for the defendants issued to and was served by the sheriff of Douglas county. (Code, § 60.) The defendants appeared and filed a demurrer to the petition, but that was overruled, and they then filed an answer. The plaintiff then obtained leave to file an amended petition, and in accordance therewith amended his cause of action for a rescission of the contract, and then added an entirely new cause of action, demanding damages for a breach of the covenants of warranty in the deed by which the defendants conveyed the Missouri lands to the plaintiff in error. A motion was made to strike out and dismiss the second cause of action for damages, for a breach of the covenants of warranty. This was sustained by the _ court.- We think there was no error in such ruling. The action for the cause alleged in the original petition was local, and it was only by reason of that, and that alone, that Reynolds and wife could be compelled to litigate in Allen county, they being residents of Douglas county. Whenever it was sought to depart from the" local action and substitute therefor or add thereto an action transitory in its nature, it ought to have been dismissed, because it has been held by this court that the presumption is in such a case that the statement of the original cause of action was made wrongfully, to procure the service of a summons upon the defendants, in violation of the spirit of §§ 46, 55,
II. The demurrer to the original cause of action was sustained. This was the cause of action to rescind the real-estate contract. It appears that the exchange had been made some time before the action was commenced, and since its consummation Neal had sold a part of the land. In the nature of things, if this contract is to be rescinded, the parties who made it are to be placed with reference to the property in the identical situation in which they were before it was made. The contract must be rescinded in toto, if at all. (Jeffers v. Forbes, 28 Kas. 174.) A party is not permitted to speculate for a time on the probabilities of an advantageous bargain, after he has discovered cause for rescission, but he must act promptly to compel it. He must not only allege that he is in a position to restore all that he has received, but he must show that he is able and willing to place the other party in the exact condition in which he was before the exchange. If he has sold or disposed of a part of the property received in exchange, and then discovers defects in the title of the remainder, his remedy is an action for damages, either for fraud and deceit in
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.