58 P. 490 | Kan. Ct. App. | 1899
Lead Opinion
The opinion of the court was delivered by
This is an action brought by the defendants in error to rescind a contract for the .sale
“One party who would rescind the contract on account of the other’s failure to comply with the condi*137 tions, must be in no default himself ; and both must be placed as they were when the contract was made.”
This position is sustained by our supreme court in Jeffers v. Forbes, 28 Kan. 174, 182; Bainter v. Fults, 15 id. 323; Bell v. Keepers, 39 id. 105, 17 Pac. 785; The State, ex rel., v. Williams, 39 id. 517, 18 Pac. 727. See, also, Armstrong v. Pierson, 5 Iowa, 328; Nason v. Woodward, 16 id. 216; Higby v. Whittaker and Burchard, 8 Ohio, 198. If the parties by voluntary agreement had rescinded the contract, the defendants would. have been entitled to recover the consideration paid by them. Defendants in error contend in opposition to this rule and in support of the judgment that this action was merely to quiet title. We cannot agree with this view of counsel. It is true that it was upon the ground that’the bond, being recorded, created a cloud upon their title from which the court had jurisdiction to grant relief, but it nevertheless is true that the action is to rescind the contract and to relieve the plaintiff from all obligation thereunder. There is no question made, as we understand it, that the relief obtained by the plaintiffs was not proper relief. It is further true that the defendants were not bound to purchase the land ; that the contract which plaintiffs signed could not be enforced against them. It is said again that the defendants did not show themselves to be entitled to any affirmative relief.
As we have heretofore stated, the law is that a rescission can only be decreed upon the terms that the parties are placed in the position they formerly occupied. It is further contended that the defendants, not having performed, nor offered to perform, the conditions of the bond or contract, are not entitled to recover back the money paid by them unless the plaintiffs are unable to perform the conditions of the bond on
In Morris v. Derr, supra, it is said, by Mr. Justice Allen, speaking for the court: “The pivqtal question is this case is, Did taking possession of the land which was the subject of the contract between the parties by the defendant operate as a rescission of the contract? ” He then proceeds to discuss the evidence as to what the defendant did and said upon taking possession of the land, and concludes: “We are satisfied that he did not intend to render himself liable to repay the money he had already received from the plaintiffs, nor to prevent the delivery of the deed on payment of the balance due.” It is evident that had the court believed the defendant by his act had rescinded the contract, it would have sustained the plaintiff’s action to recover the consideration paid. In the case of Gregg v. Von Phul, supra, the question presented in this case is not raised. In Kirby v. Harrison et al., supra, the question is not decided, nor is it discussed in the briefs of counsel nor in the opinion of the court. A return of the purchase-money was not sought. The rescission was resisted upon the grounds that no notice had been given before the suit and that a tender had
The judgment is reversed and the case remanded.
Dissenting Opinion
(dissenting) : It seems to me that the effect of the foregoing opinion is, in substance, that a person can contract for the purchase of real estate, make a reasonable payment on it, and then, if the venture proves a profitable one, pay the balance and take his deed, but, if it proves otherwise, refuse to carry out his contract and recover back all he has paid, unless the seller' is willing to allow a cloud to remain upon the record title to his land. I do not think this is the law. There is.no question of rescission in this case.