106 Kan. 264 | Kan. | 1920
The opinion of the court was delivered by
P. H. Tallman and his wife, living in Minneapolis, Minn., owned a half section of land in Hamilton county, Kansas. Tallman had some correspondence with Ray Jackson, of Syracuse, in which he signified his willingness to sell it for $1,200, on stated terms. Jackson prepared the papers for a sale to M. E. Nuckles and sent them to Tallman. After some further correspondence Tallman refused to carry out the deal. Nuckles then, on February 19, 1918, brought an action against Tallman for specific performance, alleging that Jackson had been acting as his agent. Service on Tallman was obtained by publication, and he made no defense. On April 9,
1. While the petition alleged, and the allegation was not denied, that Jackson was the agent of Nuekles in the transaction, there was nothing in the correspondence between Jackson and Tallman to suggest such relationship. Jackson, so far as Tallman could know, was acting as his agent to find him a buyer for the land. Jackson’s services were such as to entitle him to recover of Tallman the fifty-dollar commission he was charging him, but he was not authorized to execute in his behalf a binding contract for the sale of the land, n'or does he appear to have undertaken to do so. It is true that in one letter Tallman told him he might “sell” the land on terms stated, but the obvious meaning was that he might find a purchaser and negotiate the terms of sale. Tallman’s dealings were wholly with his own agent, Jackson, until the papers were presented tó him for execution, and then he refused to deal. In that situation no enforceable contract resulted between Tallman and Nuekles. (Wiggam v. Shouse, 105 Kan. 637, 185 Pac. 896.) The circumstance that Jackson was acting as the agent of Nuekles could not bind Tallman so long as he remained in ignorance of it. Inasmuch, however, as further proceedings may develop a different state of facts with respect to this aspect of the case, it will be necessary to consider the other features of the matter as well.
2. The trial court obviously proceeded on the theory that because Montgomery did not record his deed until after the action for specific performance had been begun, he was in effect a purchaser pendente lite and could make no defense excepting such as would have been open to Tallman. It is well settled in this state that if he had kept his deed from record until after the rendition of final judgment against
The difference in standing between one who does and one who does not intervene in a title action brought while he holds
If, on the other hand, in the case supposed, B, upon learning of the action to quiet title, were to cause himself to be máde a party before it had proceeded to judgment, no sufficient reason is apparent why the case should not be determined by the equities as they then existed, in which case B would prevail, because C, having accepted a quitclaim deed, was chargeable with notice of the outstanding deed, since reasonable inquiry would have advised him of it. To allow C to hold the land merely because he had succeeded in getting his petition against A filed before B had recorded his deed would be to suffer the recording act to be made a means of perpetrating gross injustice — a result which its framers never intended, and which would be compensated by no countervailing benefit to the public or individuals.
In the present case, assuming the evidence in behalf of Montgomery to be true, he had bought and paid for the land without, knowing that Nuckles had any claim upon it. Inasmuch as Nuckles had made no payment on his contract he
Judgment was rendered for the conveyance of an undivided half interest in the land, that appearing to be the extent of Tallman’s ownership, the price to be abated accordingly. No specific provision appears to have been made as to how Nuckles should pay for the property. Obviously, even if Montgomery’s title should be found to have been acquired with knowledge of a valid claim of Nuckles, he should receive the purchase price. A formal judgment for damages was rendered against Tallman, but as no personal service ,was had on him this was, of course, without effect.
The judgment is reversed with directions that if the evidence of Montgomery be found to be true judgment shall be rendered in his favor; otherwise that such proceedings be had in accordance herewith as may be necessary.