215 P.2d 149 | Kan. | 1950
The opinion of the court was delivered by
This appeal is from an order refusing to direct the clerk of the court to disburse money impounded in conformance with a judgment this court directed to be entered. The moving, parties have appealed.
Mrs. Thompson died April 2, 1946. On April 4 Thompson executed a deed to a residence property in Wichita to Samuel Elvin Waldorf and Cleora B. Jacobs, son and daughter of Mrs. Thompson by a former marraige, appellants here. In the deed he reserved a life interest in the property. For the sake of a better understanding it should be stated that the legal record title to this property has been in these two parties at all times ever since and still is in them.
On January 7,1947, Thompson filed an action against these stepchildren to have the above conveyance set aside on the ground of fraud. On January 13, 1947, the parties entered into a written agreement in purported settlement of this action. As to this residence property, it was agreed it was to be sold and the proceeds divided equally between the stepchildren and Thompson. The agreement further provided that upon the fulfillment of the contract the case to set aside the deed, to which reference has been made, was to be dismissed. On February 8, 1947, without the contract having been carried out, Thompson died. Samuel Erastus Waldorf was appointed special administrator to conserve the assets of the estate. On February 26, 1947, he filed an action to compel specific performance of the contract of sale, which had been entered into to settle the action brought by Thompson to set aside, the deed to the stepchildren. On April 1, 1947, Thompson’s will was admitted to probate and Samuel Erastus Waldorf was named-executor and directed to conserve the assets of the estate and especially to carry to a final conclusion the action to enforce the contract to sell the residence property. On April 26, 1947, Samuel Erastus Waldorf, as executor, was substituted as plaintiff in the action over the objection of defendants. The trial of the action proceeded. It was stipulated that no sale of the residence property had, been made and that the original suit to have the conveyance to the stepchildren set aside was still pending. The trial court gave judgment decreeing specific performance. On appeal to us, one of the grounds urged why the contract could not be enforced was that there were essential
“It must be assumed that the defendants will cooperate in good faith, in the sale of the residence property. What action may properly be taken in case they fail to do so may well await the event. Further, the judgment should provide, in harmony with the agreement, as supplemented by the opening statement, that the residence property be sold, if a buyer can be found, at a price not less than $12,000. This is not to say that modification upon which the parties may agree, subject to approval of the court, may not be made.”
We now take up a statement of what happened in the court below that brought on this appeal. On March 7, 1947, while the action was pending the court made an order directing the rent for the property be paid to the clerk of the court and held by that oficial pending the final outcome. On August 23, 1948, the parties stipulated that both parties had made extended efforts to sell the property and
“2. Notwithstanding their efforts, neither the plaintiff nor the defendants have been able to find a purchaser for the said property for any consideration as high as $12,000.00; and there does not appear to be any likelihood that the said property can be sold for the said sum.”
On December 13, 1948, after a hearing this stipulation was approved by the trial court. On May 10, 1949, defendants filed an application for disbursement of funds in the hands of the clerk of the court. In it they recited that the rentals had been impounded; that all issues of law and fact litigated in the action had become moot and nothing else remained for the court to determine and the impounded rentals belonged to the defendants. The prayer was
Samuel Elvin Waldorf and Cleora B. Jacobs have appealed.
They argue here that the limited nature of the judgment ordered by us and the inability of the parties to comply with this judgment had the effect of rendering unenforceable the contract the action was brought to enforce. If they are correct, then since the title to the property has at all times been in defendants they are entitled to the rent.
The appellees concede the limited nature of the judgment and the inability of the parties to carry out its literal terms. They argue, however, that authorities dealing with partial inability of performance should control and the trial court should proceed to order the property sold for the highest and best price obtainable.
We find it is not necessary to decide the above questions. We now narrate some facts learned by us at the oral argument and from a supplemental brief filed by appellees. It will be remembered the will of Thompson was admitted to probate on April 1, 1947, and Samuel Erastus Waldorf was named executor and on April 26, 1947, he, as executor, was substituted as plaintiff. We learn now that while this action was pending the heirs at law of Thompson appealed from the order admitting the will to probate. On May 13, 1948, the district court set aside the order admitting the will to probate. This judgment was appealed to us but the appeal was dismissed and the judgment has now become final. When the order admitting the will to probate was set aside for lack of capacity the appointment of Samuel Erastus Waldorf fell with it. This had been the condition of the action for nearly a year when the application to disburse was filed. Hence at the hearing of this motion the executor, Samuel Erastus Waldorf, was without authority or right to take any steps whatever in the action. The parties seemed to sense this situation since on May 12, 1949, they made oral application to be permitted to be joined as parties plaintiff, which request was granted. In their supplemental brief they point out a provision of G. S. 1935, 60-410, as follows:
“All persons having an interest in the subject of this action, and in obtaining the relief demanded, may be joined as plaintiffs, . . .”
Since the record title to the residence is in Samuel Elvin Waldorf and Cleora Jacobs, who made the application to have funds in the hands of the clerk of the court disbursed, the court should have allowed the application.
Appellees argue here that the order refusing to order the impounded money disbursed was not a final order and hence not appealable. On account of the view we have taken of the nature of the motion and the disposition we have made of it, we have concluded the order is appealable.
The judgment of the trial court is reversed with directions to enter judgment in accordance with the views expressed in this opinion.