31 P. 1066 (Kan. 1893), Bacon v. Leslie

Citation:31 P. 1066, 50 Kan. 494
Opinion Judge:HORTON, C. J.:
Attorney:D. S. Twitchell, and Redden & Schumacher, for plaintiff in error: A. L. L. Hamilton, J. K. Cubbison, and Harkless & Marley, for defendant in error:
Judge Panel:HORTON C. J. All the Justices concurring.
Case Date:January 07, 1893
Court:Supreme Court of Kansas

Page 1066

31 P. 1066 (Kan. 1893)

50 Kan. 494




Supreme Court of Kansas

January 7, 1893

Error from Butler District Court.

THIS action was commenced on October 17, 1888, by Leo N. Leslie against Benjamin R. Bacon, for the specific performance of a written contract, which plaintiff claimed had been entered into at Kansas City, Mo., on October 1, 1888, by himself and defendant, under which Leslie was to convey to the defendant the following-described property: "Lots 33 and 54, Bernard Place, Kansas City, Mo., with the buildings and other improvements thereon, subject to an incumbrance of $ 5,350 on each lot, and Bacon was to convey to Leslie the one-half of section 7-23-7, and all of section 18-23-7, all being in Sycamore township, in Butler county, Kansas;" this property to be free and clear of all incumbrances. Leslie further alleged that he was to have five days in which to investigate Bacon's property, and if, upon such investigation, it should prove satisfactory, the contract was to be binding; otherwise, to be null and void; the deed to be executed on or before the 15th day of October, 1888. Leslie also alleged that he examined Bacon's land, found it satisfactory, notified Bacon thereof, duly tendered him a deed for the property he was to convey, and deposited an abstract thereof with H. S. Burgin & Co., showing a perfect title in himself, and that the property was free and clear of all incumbrances, except the $ 5,350 on each lot; that the deeds and abstracts were to be deposited with one Burgin, and that Bacon failed and refused to deposit an abstract or to execute the deed; that he (Leslie) had performed all the conditions of the contract which he obligated himself to do, but that Bacon refused to perform each and all the conditions of the contract. Leslie further alleged, that at the time of the execution of the agreement Bacon was the owner of section 18 and the south half of section 7, all in township 23 south, of range 7 east, in Butler county, Kansas, and was not the owner of any other real estate in said section 7, and that the land last above described was the land intended to be conveyed by said contract and was therein described as "one-half of section 7-23-7, and all of section 18-23-7, all being in Sycamore township, Butler county, Kansas." The petition closed with the ordinary prayer for specific performance, costs, and other relief. Embodied in the petition, and made part of it, was a copy of the contract. To this petition defendant filed a general demurrer, which demurrer was by the court, on the 6th day of May, 1889, overruled, and exceptions duly taken. The defendant filed an answer, alleging, first, a general denial; second, a contemporaneous parol agreement between the parties, concerning the payment of liens and incumbrances upon the premises in Kansas City, Mo., and also as to certain representations about the costs of the improvements upon the lots in Kansas City, Mo.; third, that H. S. Burgin & Co. and one Emery connived and conspired together for the purpose of cheating and defrauding the defendant in making such written contract. The plaintiff replied to the answer, denying under oath that H. S. Burgin and Mr. Emery were his authorized or acting agents.

Trial by the court, at the October term for 1889, without a jury. After all the evidence had been introduced and the arguments of counsel, the court made a general finding in favor of the plaintiff and against the defendant, and decreed a specific performance of the written contract, and directed the defendant within 10 days to execute a good and sufficient warranty deed to the plaintiff for "one-half of section 7, in township 23 south, of range 7 east, and all of section 18, township 23 south, of range 7 east, all in Sycamore township, Butler county, Kansas." Other orders were made to carry this judgment into effect. The defendant excepted to the findings, rulings and judgment of the court, and brings the case here.

Judgment reversed and cause remanded.

D. S. Twitchell, and Redden & Schumacher, for plaintiff in error:

1. The court below erred in overruling the defendant's demurrer to the petition, and in overruling his objection to the introduction of any testimony under the petition. The contention we make on these points is, that the description of the land is so indefinite that the court cannot decree a specific performance of the contract. Fry v. Platt, 32 Kan. 65. See, also, Pierson v. Ballard, 20 N.W. 193; Appeal of Holthouse, 12 A. 340; Nippolt v. Kammon, 40 N.W. 266; Holmes v. Evans, 48 Miss. 247; 12 Am. Rep. 372; Clark v. Chamberlain, 112 Mass. 19; Nyegert v. Franck, 22 N.W. 303; Carr v. Passaic Co., 22 N.J.Eq. 85; McGuire v. Stevens, 42 Miss. 724; 2 Am. Rep. 649; 26 Am. Dec., note to the case of Atwood v. Cobb, p. 665; Johnson v. Craig, 21 Ark. 533.

The contract, being a nullity as to one description and incapable of enforcement as to...

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