122 Kan. 373 | Kan. | 1927
The opinion of the court was delivered by
The action was one by a vendee, in a contract for sale of real estate, to procure title. The husband of the vendee joined with her as plaintiff. They were defeated, and appeal.
Lucy Williams purchased from George Frank, went into possession, and defaulted. The contract came into possession of Forrest B. Anderson. Frank deeded to Anderson, and Anderson took steps to obtain possession. The petition charged Anderson obtained possession of the contract by defrauding plaintiffs, and procured the deed by defrauding Frank. The court found that, for a valuable consideration, plaintiffs sold, assigned and transferred the contract to Anderson; that Frank consented to the assignment; that Anderson fully complied with the contract; and that Frank gave Anderson-a warranty deed whereby Anderson became vested with full legal title and became entitled to possession. The court further found that after Anderson procured title, plaintiffs leased from him, for a specified term, for a specified rent, which they paid. These findings discredited the testimony of the principal witnesses for plaintiffs, and negatived fraud, which was the sole ground on which recovery was sought. The findings are based on ample evidence, which the
Plaintiffs went into possession under the contract received from Frank, and have continued to occupy the premises as a homestead. It is now claimed Charles Williams did not join with his wife in the alienation to Anderson. It was not necessary that Williams execute the assignment of the contract to Anderson, because he was not a party to it. His wife did execute a proper assignment indorsed on the instrument, and the instrument so assigned was delivered to Anderson, who paid a valuable consideration for it. Therefore, Anderson became assignee of the contract, unless the assignment were ineffectual for some reason. The reason relied on in the district court was stated in the petition. The word “homestead” does not appear in the petition, and Williams did not allege he did not consent to the assignment. He put his eggs in his wife’s basket, and alleged the assignment was procured by fraud. The court determined the issue of fraud against him, and that ends the matter.
Plaintiffs further' attempt to mend their hold in this court by contending Anderson was incompetent to take assignment from them, and to take the deed from Frank. Plaintiffs allege Anderson was their attorney, and included breach of professional duty in the charge of fraud. The testimony disclosed Anderson was employed by Frank as Frank’s attorney to see that plaintiffs paid up, or to get possession of the property. Anderson said he would see what he could do. A few days later he returned with the assignment of the contract to himself and a receipt for $200 which he had paid for it. He outlined a course of procedure which was satisfactory to Frank, which was carried out. The arrangement included a mortgage to' the Minnesota Avenue Bank to secure a loan of $700. At that time plaintiffs were out of the picture. After Anderson procured his deed from Frank, they reappeared as tenants of Anderson, and their present solicitude regarding the integrity of the transaction between Anderson and Frank is purely vicarious.
The judgment of the district court is affirmed.