80 Kan. 736 | Kan. | 1909
The opinion of the court was' delivered by
This was a suit1 to compel the specific performance of‘an oral contract to convey real ¡estate. The parties agree that such a contract was made, but disagree as to the estate to be conveyed. The plaintiff, Allbrecht, alleged that he was to have the land in fee simple for $20 per acre, while the defendants, Wooddell and wife, assert that an estate for the life of the vendee ■only was sold. The plaintiff took immediate possession of the land, made lasting and valuable improvements upon it, and paid the taxes. After holding and ■cultivating the land under the agreement for dver five years, and after paying the consideration in full, the plaintiff demanded a conveyance. The defendants refused to convey the fee, but offered to convey a life-estate, which the plaintiff refused to accept. The court found for the plaintiff. The defendants. allege error in the principal finding — that the agreement was to ■convey the land in fee instead of a life-estate.
It is .contended that specific performance can not be decreed unless it is shown by clear and satisfactory evidence that the possession was taken and that the improvements were made under the contract alleged by the plaintiff; that in this case' these acts were as consistent with the contract testified to by the defendants as that claimed by the plaintiff; and that the evidence was therefore insufficient. The measure of proof required in this general class of cases is stated and the terms used in defining it are commented upon iff Winston v. Burnell, 44 Kan. 367. Clear and satisfactory evidence should, be required to take the case of a parol contract for the conveyance of land out of the operation of the statute of frauds (Long v. Duncan, 10 Kan. 294; Baldwin v. Baldwin, 73 Kan. 39, 46), but, where
Error is predicated upon testimony given in support, of a finding of the court that the defendants had offered to sell this land to others at the same price for which it was sold to the plaintiff. This finding is not necessary to support the judgment. The fact, however, is. corroborative of the principal finding, and the evidence supporting it was the testimony of the agent before referred to that he was authorized in the spring of 1901 to sell the land at $20 per acre; that in September following Mr. Wooddell told him that he had offered it. to Allbreeht and could give a bond for a deed at that, price, and asked him to “get after” Allbreeht and see if the sale could be made; and that soon afterward Mr. Wooddell said that he had made the sale. This evidence was competent and material. In the absence of restrictions the authorization of an agent to sell lands indicates an intention to transfer the full title of the prin cipal.
.Error is also assigned upon the refusal to grant a new trial upon newly discovered evidence. As this alleged error is not referred to in the brief it may be inferred that it is not relied upon. We have read the affidavits, however, and find no error in the denial of the motion or in other proceedings.
The judgment is affirmed.