Bacon v. Leslie

• Decision Date: 07 January 1893
• Citation: 31 P. 1066,50 Kan. 494
• Parties: BENJAMIN R. BACON v. LEO N. LESLIE
• Court: Kansas Supreme Court

31 P. 1066

50 Kan. 494

BENJAMIN R. BACON v. LEO N. LESLIE

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 that, becomes a nullity as to all, for the consideration is entire and cannot be divided; the contract is indivisible, and, being void as to part, the whole fails. Becker v. Mason, 30 Kan. 702; Ellis v. Carey, 42 NW. Rep. 254; Bourget v. Monroe, 25 id. 514; Hall v. Loomis: 30 id. 374; Phillips v. Staunch, 20 Mich. 369; King v. Buckman, 20 N.J.Eq. 316.

2. The court below erred in overruling the defendant's demurrer to plaintiff's evidence. As the plaintiff did not produce any records, nor offer to produce any, by which to prove ownership of the property, and as the offer related exclusively to title to land, and was a set of conclusions about which the witness on the stand could not testify, and as it would necessarily be a matter of record, or at least in writing, and as no deeds or other writing were presented or proffered, it was clearly incompetent, and comes squarely within the decision of Hentig v. Redden, 45 Kan. 21.

3. The court erred in excluding material testimony offered by the defendant, and in striking out material testimony of the defendant after it had been received. Specific performance of a contract for the sale of real property will not be decreed unless the plaintiff proves he has a good title, and if the evidence shows the title is doubtful, a decree will not be made. Fry, Spec. Perf., notes, p. 428, § 859. The burden of showing title in plaintiff rests upon himself, and, without proof thereof, he is not entitled to a decree. Walsh v. Barton, 24 Ohio St. 28, 40; Hinckley v. Smith, 51 N.Y. 21.

The defendant offered evidence of the statements and actions of Burgin, which were excluded by the court. The contract that plaintiff relied upon shows that Burgin was the agent for both parties, and the testimony throughout the record shows that he was undoubtedly the agent of Leslie, and therefore this evidence ought to have been received. 1 Am. & Eng. Encyc. of Law, p. 359; Sewing Machine Co. v. Rheinschild, 25 Kan. 534.

The court erred in striking out all portions of the evidence that had been received concerning the oral contract set up by the defendant, and the fraud alleged by him. See Babcock v. Deford, 14 Kan. 408; Weeks v. Medler, 20 id. 57; Schoen v. Sunderland, 39 id. 760; Manufacturing Co. v. Stark, 45 id. 606; Stevens v. Matthewson, 45 id. 594; Waite v. Teeters, 36 id. 606.

A. L. L. Hamilton, J. K. Cubbison, and Harkless & Marley, for defendant in error:

1. The description of the property in question is sufficient. Hollis v. Burgess, 37 Kan. 487; Fowler v. Redican, 52 Ill. 405; Bowen v. Prout, 52 id. 354; White v. Herman, 51 id. 243; Ryan v. United States, 136 U.S. 82; Mead v. Parker, 115 Mass. 413; Hurley v. Brown, 98 id. 545; Waring v. Dyers, 40 N.Y. 357; Robeson v. Hornbaker, 2 Green Ch. 60; Owen v. Thomas, 3 M. & K. Ch. 353; Bleakley v. Smith, 11 Simons Ch. 150; Hooper v. Laney, 39 Ala. 338; Springer v. Kleinsorge, 83 Mo. 152.

2. The contention of the plaintiff in error, that the statements or representations made by Leslie as to the condition of the property, how it was built, the cost of it, or its value, cannot be sustained, for they are matters in parol and were properly excluded. Shoen v. Sunderland, 39 Kan. 758.

3. A party who has an opportunity to examine the property, but fails to do so, and prefers to take the representations of the vendor, cannot complain. Wat. Spec. Perf., § 317; Story, Eq. Jur., § 200; Dyer v. Hargraves, 10 Ves. 505; Pratt v. Phillbrook, 33 Me. 17; Hough v. Richardson, 3 Story Rep. 659; Langdon v. Green, 49 Mo. 363.

4. But the plaintiff in error does not contend by his answer or his evidence that the land described in the petition is not in fact the land which defendant agreed to sell, and the defendant himself cannot complain of his own description. Hollis v. Burgess, 37 Kan. 487; Flaharaty v. Blake, 10 A. 158; Tethrow v. Anderson, 63 Mo. 96; 2 Green Ch. 63, note at bottom; Bleakley v. Smith, 11 Simons Ch. 150; Torr v. Torr, 20 Ind. 118.

5. We ask the enforcement of the contract as the parties have written it, and by the description as they have written it. If the description is not as certain as it might be, or apparently defective even, that is a matter defendant cannot complain of, and is a matter we may correct by another or future action for that purpose. Hollis v. Burgess, 37 Kan. 494; Bean v. Valey, 2 Mo. 126.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

It is contended on the part of the defendant below that the trial court committed five material errors. They are alleged as follows: (1) The overruling of the demurrer to the petition; (2) overruling the objection of the defendant to the introduction of any testimony under the petition; (3) overruling the demurrer of the defendant to the evidence of the plaintiff; (4) excluding material testimony offered by the defendant; (5) striking out...