98 Kan. 554 | Kan. | 1916
The opinion of the court was delivered by
The plaintiff recovered judgment for the balance of the purchase price-for the sale of real property. The defendant appeals.
The petition alleges that in March, 1910, Adam Dailey ver
The defendant demurred to the petition on the ground that the plaintiff was not a party in interest and had no capacity to sue; that the action was brought to charge the defendant upon an agreement .for the sale of real estate which was not in writing nor signed by the party so charged; that the action was upon a verbal contract which was not to be performed within one year from the making thereof; and that the petition of the plaintiff did not state facts sufficient to constitute a cause of action. The demurrer was overruled.
On the trial Adam Dailey testified in substance as follows;
“I know the defendant, Boothe; had a business transaction with him in March, 1910; I sold him the lot in Westport Annex, this counfy, for $1250; a written contract was afterwards prepared by my niece who .took it over for Mr. Boothe to sign; he did not sign it. After I sold him this property Boothe took possession I think in March, 1910, it was about a week after the sale. Boothe continued to make payments on the property for about three years; he paid $460. Sometimes he got behind and*556 sometimes he paid up. He paid $20 per month for the first eight months, after which he was to pay $10 per month. I sold my equity in the place to Mr. Witt the 27th or 28th of June, 1913. There were three months’ payments due when I sold to Mr. Witt. Witt went down to look at the house before he bought it and I told Boothe I had sold it to Witt. I told him to make his payments to Witt; he said, ‘I don’t owe Witt anything.’ ”
It does not appear when the written contract was prepared. It was presented to the defendant’s wife two years after the deféndant had taken possession of the property. The defendant testified in substance as follows:
“My name is Edward D. Boothe; I reside in Westport Annex, Johnson county, Kansas. ■ I have a family; wife and children. I know Adam Dailey and his handwriting (witness shown paper). The signature to that paper is that of Adam Dailey, same is marked Exhibit ‘A’ by stenographer. (31.) I had a business transaction with Dailey on March, 1910. I made an agreement to purchase this property and paid $5 down and told him I would bring the other $15. I got a receipt for the $5. Witness shown paper exhibit ‘A’ (45); that is the receipt he gave me at that time. There was never any contract or agreement between Mr. Dailey and me for the sale of that Lot 126, Westport Annex, Johnson county, Kansas, except that receipt. I never agreed to pay the taxes or insurance on the property. I never made any contract or agreement with Dailey'that in case I failed to pay any one of the payments he might declare the contract void and the whole $1250 due. Mr. Dailey knew when we took possession of the property-; he knew I was a married man and that we took possession and occupied the house as our homestead.. I never paid any money or authorized any one to pay any money to Mr. Witt on my purchase of the property from Mr. Dailey.”
The receipt named by the defendant as “Exhibit A” reads as follows:
“Rosedale, Kansas, March 19, 1910. Received of Edward D. Boothe, five dollars, payment on house in Westport Annex. Balance $20 month for eight months, balance $10 a month at 6% interest. Take charge April 10, 1910. Adam Dailey.”
There was no evidence to' show that the purported written contract attached to the petition was intended to be signed by either Adam Dailey or the defendant, or that it embodied the verbal contract that was entered into by them. Three monthly payments were in default when this action was commenced.
“It is therefore now by the court considered, ordered and adjudged that the plaintiff, H. M. Witt, recover of and from the defendant, Ed. Booth, the sum of $832.40 with interest at the rate of .... per cent per annum and costs in this action taxed at $.. . . for which let execution issue.”
Nothing is said about any homestead or any lien or any sale of any property. Such a judgment can be enforced by ordinary execution. If an execution is levied on the defendant’s homestead, his wife’s right in that homestead can then be protected, if she has any. (King v. Wilson, 95 Kan. 390, 148 Pac. 752.)
The cause is remanded, with directions to the trial court to enter judgment in favor of the plaintiff for the amount due at the time of the commencement of the action, and to set aside that part of the judgment directing the delivery of the deed deposited upon payment of the amount of the judgment.