10 Kan. 22 | Kan. | 1872
The opinion of the court was delivered by
This is an action for specific performance, brought by plaintiff in error as holder by assignment of a bond for the conveyance of a tract of land. The cause was tried by the court. The finding is general, for the defendant. A motion for a new trial was overruled, and the case comes to this court for review upon all the evidence. The bond of itself was sufficient to entitle the plaintiff to the relief sought; but the evidence showed that the bond had never been delivered. The land was sold for $350. Of this amount $175 were to be paid at the time of the making the bond, but the purchaser, not being able to raise all the money, the bond
Some time after Roberts obtained possession of the land, Mullenix offered if Roberts would pay for the land, that he would make him a deed for the land. This offer was rejected upon the alleged ground that at the time Mullenix could not make a good title. Whether the title was good or not, does not appear; nor does it matter. It was not a ratification, as it was in terms just what he had agreed to do, and was rejected. It was no act. It was an offer to stand by his agreement, though not bound by law to do so. The offer refused by plaintiff' in error cannot now become the evidence of a right in him. This conclusion on this point decides the case, and renders it unnecessary to examine the other points urged in the elaborate brief of plaintiff' in error.
Though we think it plain that the contract between Schull, the obligee in the bond, and Mullenix, was rescinded, and that Roberts probably knew of it when he bought the bond, there is no ground for the application of the occupy in g-claimant law, as it does not appear that plaintiff in error is disturbed in his possession. The judgment is affirmed.