775 P.2d 198 (Kan.App. 1989), 62887, Miller v. Alexander

Docket Nº:62887.
Citation:775 P.2d 198, 13 Kan.App.2d 543
Party Name:Ermil R. MILLER, Appellant, v. Mary E. ALEXANDER, et al., Appellees.
Attorney:[6] David K. Fromme, of Shawnee, for the appellant. Mark V. Bodine and Rudolf H. Beese, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for appellees Barlows.
Case Date:June 02, 1989
Court:Court of Appeals of Kansas
 
FREE EXCERPT

Page 198

775 P.2d 198 (Kan.App. 1989)

13 Kan.App.2d 543

Ermil R. MILLER, Appellant,

v.

Mary E. ALEXANDER, et al., Appellees.

No. 62887.

Court of Appeals of Kansas

June 2, 1989

Review Denied Sept. 29, 1989

Page 199

Syllabus by the Court

1. Whether a buyer of land took with constructive notice of the contents of an instrument filed with the register of deeds is a question of law.

2. Where a duly recorded contract for deed conveys one portion of a tract of land and grants a purchase option for the remaining portion of the tract, it is held that an error in the legal description of the remaining portion does not negate constructive notice of the purchase option to a subsequent purchaser of the remaining portion where the two portions necessarily had to be in the same section, the error had been corrected by affidavit, the affidavit and the contract for deed were properly indexed, and an examination of the seller's title would have disclosed both the affidavit and the contract for deed.

3. Where the contents of a recorded instrument are unclear and potentially misleading, notice of the instrument's contents will nonetheless be implied if a reasonably cautious person would have been prompted to inquire further, which further inquiry would have informed him of the instrument's true contents. In other words, if a possible cloud on the seller's title appears,

Page 200

the prospective purchaser must either clear the cloud or proceed at his own risk.

4. A purchaser who takes with constructive notice of another person's purchase option takes subject to that option.

5. Whether equity will decree the specific performance of a contract rests in sound judicial discretion and always depends on the facts of the particular case.

6. Ordinarily there is no equity in releasing a party from a fair and reasonable contract into which he freely entered. Whether the contract is fair and reasonable is generally determined as of the time in which it is entered, and not as of the time of performance.

7. Although it is true that specific performance may not be granted where there is an adequate remedy at law, such a remedy, in order to [13 Kan.App.2d 544] defeat specific performance, must be as plain, adequate, complete, and efficient as the remedy of specific performance and not circuitous or doubtful.

8. A right of preemption differs from an option to purchase in that a preemption right does not give to the preemptioner the power to compel an unwilling owner to sell, but merely requires the owner to offer the land to the preemptioner on agreed-upon terms when and if the owner decides to sell.

9. When the conditions are met for the exercise of a preemptive right, that right becomes, in effect, an option, which may be specifically enforced against a subsequent purchaser with notice.

David K. Fromme, Shawnee, for appellant.

Mark V. Bodine and Rudolf H. Beese of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, for appellees Barlows.

Before DAVIS, P.J., LEWIS, J., and TERRY L. BULLOCK, District Judge, Assigned.

DAVIS, Judge:

The plaintiff Ermil R. Miller brought this action for specific performance against the defendants, Mary E. Alexander, Warren E. Barlow, Coletha M. Barlow, Warren E. Barlow II, and Lynne K. Barlow, based upon an option to purchase five acres of land for $2,500 in Johnson County, Kansas. The trial court awarded damages against Mary E. Alexander for breach of contract but refused specific performance against the Barlows based upon its holding that the Barlows were bona fide purchasers for value without knowledge of plaintiff's real estate option. We reverse and remand with instructions to grant specific performance based upon our conclusion that the Barlows were not bona fide purchasers.

On April 8, 1970, Mac P. Alexander, who is now deceased, and Mary E. Alexander, his wife, executed a contract for deed conveying all but five acres of an approximately 80-acre tract near Olathe to Richard L. Bond and Suzanne S. Bond, William W. Chiles and Carol L. Chiles, and James R. Lippert and Connie M. Lippert for the sum of $37,500. The 75 acres they conveyed was apparently undeveloped land. The five acres they retained contained their residence and several small buildings. The 75 acres were described as follows:

"The East Half (E 1/2) of the Northwest Quarter (NW 1/4) of Section 24, Township 13, Range 22, excepting 5 acres in the Northeast Corner of said Northwest [13 Kan.App.2d 545] Quarter, described as: Commencing at the Northeast Corner of the above described real estate, thence West 330', thence South 660', thence East 330', thence North 660' to point of beginning, subject to easements, restrictions, zoning and rights of way of record, if any."

The contract for deed gave the buyers an option to purchase the five acres for $2,500. Specifically, it provided:

"Seller gives the buyer the option to purchase the five acres excepted above, more particularly described as:

Commencing at the Northeast Corner of the East Half (E 1/2) of the Northwest Quarter (NW 1/4) of Section 24, Township 13, Range 22, Johnson County, Kansas, thence West 330', thence South 660', thence East 330', thence North 660' to point of beginning, subject

Page 201

to easements, restrictions, zoning and rights of way of record, if any, containing five acres more or less,

with all improvements located thereon for the sum of Two Thousand Five Hundred ($2,500.00) on the following conditions, to wit:

"1. Buyer must exercise this option within thirty days after the date of the death of the survivor of Mac P. Alexander and Mary E. Alexander and shall pay said consideration of $2,500.00 to the estate of the surviving seller or the heirs that are legally entitled thereto, or said sum shall be escrowed until such time as an executor or administrator is appointed or the heirs are determined.

"2. In the event seller elects to sell the...

To continue reading

FREE SIGN UP