Boothe v. Dailey
| Decision Date | 08 June 1918 |
| Docket Number | 21591 |
| Citation | 103 Kan. 255,173 P. 283 |
| Parties | BOOTHE et al. v. DAILEY. |
| Court | Kansas Supreme Court |
Where a vendor contracts to convey real property on the payment of a certain sum in installments, and is paid a number of the installments, and then makes a conveyance to a third party the damages sustained by the vendee on account of the conveyance may be recovered from the vendor; but, where the third party can be compelled to perform the contract, none of the amounts paid the vendor, and neither the value of permanent improvements made by the vendee, nor the increase in the value of the property, can be recovered from the vendor, unless there is a rescission of the contract.
Appeal from District Court, Johnson County.
Action by Maggie Boothe, administratrix, and another against Adam Dailey. From the judgment, plaintiffs appeal. Affirmed.
I. O Pickering, of Olathe, for appellants.
S.D Scott, of Olathe, for appellee.
Ed Boothe and Maggie Boothe commenced this action to recover the damages sustained by them by reason of the defendant’s deeding to a third party real property which the defendant had contracted to convey to Ed Boothe. Afterward Ed Boothe died. Maggie Boothe, his wife, was appointed his administratrix and was made a party plaintiff in this action. This is the second time this action has been in this court. Boothe v. Dailey, 96 Kan. 711, 153 P. 551. In the former opinion, it was held that, as against a demurrer, the petition stated a cause of action. After being remanded, the action was tried by the court without a jury, and judgment was rendered in favor of the plaintiffs for $25. They appeal from that judgment, and urge that, under the evidence judgment should have been rendered for a much larger amount.
The defendant contracted with Ed Boothe to convey to him certain real property in Johnson county, on the payment of $1,250 in monthly installments. Payments to the amount of $702.06 were made under that contract. The defendant, by general warranty deed, conveyed the property to H. M. Witt. Soon thereafter Witt commenced an action in forcible detention against the plaintiffs to recover the possession of the property. The plaintiffs employed counsel, and that action was dismissed. Witt then commenced an action against Ed Boothe to recover the amount unpaid under the contract between Ed Boothe and the defendant. Judgment was rendered in favor of Witt for all the unpaid installments. Boothe appealed to this court. The action was remanded, with directions to the trial court to enter judgment in favor of Witt for the installments due on the contract at the time the action was commenced. Witt v. Boothe, 98 Kan. 554, 158 P. 851.
The plaintiffs made lasting and valuable improvements on the property, and the property increased in value after the contract was made. The plaintiffs contend that they should have recovered judgment for the payments made, for the attorney’s fees contracted or paid, for the value of the improvements made, and for the increase in the value of the property.
If the plaintiffs had rescinded the contract, they would have been entitled to restoration of the purchase money and to compensation for the improvements made by them. King v Machine Co., 81 Kan. 809, 106 P. 1071; Read v. Loftus, 82 Kan. 485, 494, 108 P. 850, 35 L. R. A. (N. S.) 457; 39 Cyc. 1439, 1440; 2 Black on Rescission and Cancellation, § § 441, 636. Neither of the plaintiffs rescinded the contract with Dailey. They continued to remain in possession of the property after the defendant deeded it to Witt. They could not rescind the contract without surrendering possession of the property. Jeffers v. Forbes, 28 Kan. 174; Bell v. Keepers, 39 Kan....
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