Motion
for Rehearing.
THIS
case was assigned for hearing at the March sitting of this
court for 1889. The case was referred to and heard before the
commission; HOLT, C., preparing the report. Upon the
recommendation of the commission, the judgment of the
district court was affirmed. The following is the syllabus of
the report:
"1.
Where a party purchases from another and has transferred to
her a contract for the sale of land, made by a railway
company, but gives the contract to the party from whom she
purchased for safe-keeping, as her agent, and he sells and
assigns it without her knowledge or consent, and she
subsequently brings suit against her agent and the company
for the land, in the county where the land is situated, and
also gives notice to the general attorney of the company of
her claim, the company has notice of her rights to and
interest in the land, although service upon it in the action
brought by her was defective. After the notice had been given
and the action brought, the company executed a deed to the
holder of the contract, upon presentation and payment of the
unpaid portion of the purchase-money; there was a provision
in the contract that no assignment should be valid unless it
was indorsed thereon, and that the company had the right to
convey the land upon presentment of the contract and payment
of the unpaid portion of the purchase-money. Held, That the
stipulation in such contract was no defense against her claim
after notice.
"2.
The railway company has no cause for complaint because the
subsequent holders of the contract of sale and the party to
whom the company executed a deed were not made defendants in
the action, when with full knowledge of all the circumstances
it failed to ask to have them made parties."
On
October 7, 1889, the railroad company filed its motion for
rehearing, a copy of which motion, omitting caption, is as
follows:
"Comes
now the above-named plaintiff in error and moves the court to
grant a rehearing in the above-entitled cause, and that the
judgment heretofore rendered by said court be set aside and
reversed, because said judgment is erroneous and contrary to
law, and for the reason that the opinion of the commissioners
upon which said judgment was rendered contains errors of law
and of fact, and does not dispose of the questions raised in
the brief of plaintiff in error, heretofore filed in said
cause."
The
original petition, filed on the 12th day of June, 1882
omitting caption, is as follows:
"The
plaintiff states that, on or about the 8th day of July, 1881
the defendant, the Atchison, Topeka & Santa Fe Railroad
Company, was the owner in fee simple of the
following-described real estate, lying and situated in the
county of Sedgwick and state of Kansas, to wit: the south
half of the northwest quarter of section one, in township
twenty-six south, range one east; that on or about the 8th
day of July, 1881, the said defendant, the Atchison, Topeka
& Santa Fe Railroad Company, entered into a contract and
agreement in writing with M. S. Sproules, in and by the terms
of which said agreement it was contracted and agreed that the
said Atchison, Topeka & Santa Fe Railroad Company, upon
the payment of the sum of one thousand dollars by the 15th
day of May, 1882, should execute and deliver to the said M
S. Sproules a good and sufficient deed to said real estate
that on or about the 8th day of July, 1881, the said M. S
Sproules, for a valuable consideration, under his hand, duly
assigned the said contract and all his right and interest
therein to the defendants, A. H. McKee and H. W. Stewart, and
then and there delivered said contract to the defendants,
McKee and Stewart; that on or about the 8th day of July,
1881, the said A. H. McKee and H. W. Stewart entered into an
agreement with the plaintiff whereby it was contracted and
agreed that upon the payment to the said McKee and Stewart of
the sum of twenty-five dollars and the delivery to them of a
good and sufficient deed to a certain tract of land
containing eighty acres, in the state of Missouri, they, the
said defendants, McKee and Stewart, should assign, transfer
and set over to the plaintiff all their right and interest
under said contract assigned to them as aforesaid by the said
M. S. Sproules; that upon the execution of said agreement the
plaintiff, in pursuance thereof, executed and delivered to
the defendants, McKee and Stewart, a good and sufficient deed
to said land situated in the said state of Missouri, and then
and there paid in cash to the said McKee and Stewart the sum
of $ 25; whereupon the said McKee and Stewart executed and
delivered to the plaintiff their certain instrument in
writing, as follows:
"'WICHITA,
KANSAS, July 8, 1887.-- Received of Mrs. N. A. Benton,
twenty-five dollars, to apply on contract No. 4528, A. T.
& S. F. R. R. land, situate in Sedgwick county, Kansas.
MCKEE & STEWART.' That the land mentioned and
referred to in said instrument of writing is the same
mentioned and described in the contract aforesaid, between
the said Atchison, Topeka & Santa Fe Railroad Company and
the said M. S. Sproules; that the plaintiff has paid to the
said Atchison, Topeka & Santa Fe Railroad Company, under
his contract, the entire purchase-money of said land,
excepting the sum of $ 68.15; that the said McKee and
Stewart, after receiving the deed to the said land, in the
state of Missouri, and the said sum of $ 25, then and ever
since have refused and neglected to assign and deliver said
contract mentioned in said instrument of writing to the
plaintiff, and now withhold the same from the plaintiff, and
threaten and are about to transfer and assign the same to
some person or persons who have no right to the same; that
the plaintiff has always been ready to pay the said the
Atchison, Topeka & Santa Fe Railroad Company the sum of $
68.15, and now offers to pay the same into court under said
contract, and as thereby stipulated and required.
"Wherefore,
the plaintiff demands judgment herein, that there be an
accounting between the said Atchison, Topeka & Santa Fe
Railroad Company and the plaintiff, and the amount due under
said contract be ascertained, and that whatever amount may be
found due, the plaintiff be permitted to pay; and that upon
the payment of all sums of money due upon and under said
contract to the person entitled to receive the same, that it
be decreed by the court that the Atchison, Topeka & Santa
Fe Railroad Company execute to the plaintiff a good and
sufficient deed to said real estate; and the plaintiff
demands that the defendants McKee and Stewart be barred of
all right and interest in said real estate, and be compelled
to bring into court the said contract between the defendant
the Atchison, Topeka & Santa Fe Railroad Company and the
said M. S. Sproules, and surrender the same to plaintiff. The
plaintiff demands all such other relief as she may be
entitled to in the premises."
A. H.
McKee and H. W. Stewart answered as follows:
"For
their answer and defense to this action the defendants McKee
and Stewart allege, that when the defendant McKee made the
agreement with the plaintiff to assign to her the contract
set forth and described in her petition, said plaintiff was
to pay the installment of money due on said contract which
fell due on or about the 15th day of May, 1882, in amount
about $ 70, and defendant so notified plaintiff; that by
reason of plaintiff's failure to pay said May 1882
installment of money, the defendant was obliged to and did
pay the same or forfeit the amount already paid; that being
unable to hear from the plaintiff, and regarding the
plaintiff as having forfeited her rights in the matter, this
defendant, McKee, on or about the 24th day of December, 1882,
assigned and sold all of said defendants McKee's and
Stewart's interest in and to said Atchison, Topeka &
Santa Fe Railroad contract to one Davis, who is now the owner
of the same in good faith; that said contract has passed out
of possession of these defendants, and they have no further
rights or interest therein; all of which the defendants
allege they are ready and willing to make appear; and they
pray that they may go hence with their costs."
On
March 17, 1886, the railroad company with the permission of
the court filed the following answer, omitting caption:
"Now
comes the defendant, the Atchison, Topeka & Santa Fe
Railroad Company, and by permission of the court heretofore
obtained, files this, its answer to the plaintiff's
petition in the above-entitled suit:
"1.
This defendant says that on and prior to the 15th day of May
1877, it was the owner in fee simple of the south half of the
northwest quarter of section number one, in township number
twenty-six south, of range number one east, in the county of
Sedgwick, in the state of Kansas; that on the 15th day of
May, 1877, it made and entered into a written contract with
one Martin S. Sproules, a copy of which written contract is
hereto attached, marked 'Exhibit A' and made a part
of this answer, by the terms of which contract it agreed to
sell and convey to the said Martin S. Sproules, or his
assigns, all of said premises, upon the compliance of the
conditions contained in said contract; that afterward, to
wit, on the 18th day of June, 1880, said Sproules, for a
valid consideration, assigned all his right, title...
