102 Kan. 124 | Kan. | 1917
The opinion of the court was delivered by
J. F. Walz brought an action against Peter Keller to recover rent due upon a farm lease. Keller’s wife and two mortgagees of the crop were also made defendants. Walz also secured a judgment in the justice of the peace court in a forcible detainer action for possession of the- farm. The latter action being appealed to the district court, the two
In 1908, defendant had entered into á contract with Mary L. Burpee by the terms of which she agreed to sell the land in question, situated in Trego county, to him for $2,700. He occupied it until January 24, 1911, when he was in default to the extent of about $900, having paid $700 on the purchase price. He and his brothers then entered into a contract with plaintiff by which the latter was to sell them certain land in Gove county for $30,000 and, as part of the consideration therefor, defendant (his wife joining with him) assigned to plaintiff his interest in the Burpee contract.
On April 1, 1914, defendant and his brothers being in default about $4,500 on the Gove county land, plaintiff and defendant then adjusted matters between them by releasing each other from all liability on the Gove county contract, and entering into another contract in which defendant agreed to purchase the Trego county land from the plaintiff for $2,265, payable in seven annual installments of $325 each, commencing October 1, 1914, with interest at six per cent. Strict compliance with its terms as to the times of making payments was made a condition of the agreement. The defendant and his wife and children have occupied the land as a homestead since May, 1914. On October 1,1914, defendant failed to make the payment then due and notice to quit the premises was served upon him by plaintiff. Defendant asked for further time, and on October 2, 1914, they entered into another written agreement under which the contract of purchase made April 1, 1914, was surrendered to plaintiff, and it was provided that it might be redeemed on the following conditions:
“If the second party shall on October 1st, 1914, or on October 1st, 1915, make payment in full to the said party of the first part of all principal payments due at the time of such payment on contract for sale above mentioned, dated April 1st, 1914, then the,said first party agrees to renew the said contract of sale or execute a new one under like terms and conditions.”
It was further provided that the defendant should pay, not later than October 30, 1914, the sum of $67.95 as interest due under the contract of purchase, and that a failure to make such payment in time should render the new contract null and void.
The court ruled that when Peter Keller and his family took possession of the land under the contract of April 1, 1914, it became a homestead, and that as his wife was not a party to the subsequent negotiations and had never consented to any modification of the original contract or to a surrender of her homestead rights, the lease was a nullity and the original contract was still in force. The notices were held to be insufficient, one because it was premature and the other because of indefiniteness. The court further held that the second contract was a recognition that the first was still in force and that, by the second, plaintiff had waived the provisions of the first as to the times of payment of principal and interest, and also that it operated to extend the times for some of the payments. .
It is contended by plaintiff that there is inconsistency in the ruling that the contract of October 2 is valid enough to extend the times of. payment of principal and interest provided for in the first contract, but invalid as to the cancellation of the first contract and as to that provision of the sec-end which makes nonpayment of interest at the new times fixed a ground of forfeiture. The .second contract is wholly void as against the homestead interest, as is also the contract
By that contract the rights of the parties must be measured, and the homestead right is, of course, held subject to its terms and conditions. Although the property is a homestead, the purchaser and his wife cannot keep the land and also the money which he agreed to pay for it, if the seller chooses to enforce the obligations executed under the contract of purchase. The statute provides that . ■. no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the.purchase of said premises, or for the erection of improvements thereon,” etc. (Gen. Stat. 1915, § 4697.) Plaintiff contends that the homestead right cannot be set up as against the seller in this proceeding since the purchaser is in default for the purchase money. The exemption may be
The defendants had a right to assert the claim of a homestead interest, and the judgment upholding that claim is affirmed.