Clark v. Axley
| Decision Date | 25 January 1947 |
| Docket Number | 36711. |
| Citation | 176 P.2d 256,162 Kan. 339 |
| Parties | CLARK v. AXLEY. |
| Court | Kansas Supreme Court |
Appeal from District Court, Sumner County; Wendell Ready, Judge.
Action by Alice Clark against Eddie Axley to enforce a contract for conveyance of realty. From an order overruling a demurrer to plaintiff's amended petition, defendant appeals.
Syllabus by the Court.
1. A contract for the conveyance of real property by warranty deed and a warranty deed both made at the same time, must be considered together to determine the respective rights of the parties to them.
2. A contract and warranty deed, details of which are set forth in the opinion, examined, and held, that the contract was not unenforceable under the statute of frauds for the asserted reason that the wife of the grantee had an inchoate interest in the lands to be and which were conveyed to her husband and that she had not signed the contract.
3. The contract and deed further examined, and held, that the contract was not unenforceable for the asserted reason that the grantee and his wife, at the time an action was brought on the contract, had established a homestead on the real estate and that the wife had not signed the contract.
4. The record examined in an action to enforce a contract for the conveyance of real estate, and held, the trial court did not err in overruling defendant's demurrer to plaintiff's amended petition.
W. J. King, of Geuda Suprings, for appellant.
W. H Schwinn, of Wellington, for appellee.
This was an action to enforce a contract for the conveyance of real estate. Defendant's demurrer to plaintiff's amended petition was overruled and he appeals.
For present purposes, it may be said that the amended petition alleged that the defendant had formerly owned the Northeast Quarter of Section 1, Township 34 South, Range 2 East, in Sumner County, hereafter called the real estate, and under date of July 1, 1934, had executed two described mortgages to secure payment of $2200 and $1100, and that the last mortgage was released of record on January 15, 1944. In 1938 the defendant and his wife conveyed the real estate by warranty deed to R. C. Hayes and Lovie J. Hayes, subject to the mortgages, and in the same year the last named persons conveyed the real estate by warranty deed to the plaintiff subject to the mortgages. Payments on the mortgages became in default and foreclosure was threatened and as a result of conversations between plaintiff and defendant, on February 13, 1943, they entered into a contract, the general terms of which are pleaded. Copies of the contract and of the deed therein mentioned were made part of the amended petition and attached to it as exhibits.
The contract was dated February 13, 1943. It is not artistically drawn but in general it was provided that if Axley, party of the second part, would make the payments and perform the covenants to be performed by him, Alice Clark, party of the first Part, would convey the real estate to him by warranty deed subject to the mortgage loan. Second party agreed to assume the loan and make the payments necessary to pur the loan in good standing and to pay the delinquent taxes and to then endeavor to sell the land and divide all profits with first party on any sale made within two years from date 'and first party (Clark) is also to be allowed to make sale of said land and if she sells the same then first party is to be paid his (her) part of the profit of said sale, if made within two years, and second party (Axley) will then make a deed to the party buying said land, at any bona fide sale.' Provisions of the contract as to placing deed in escrow and for its delivery to Axley need not be reviewed.
The deed was dated February 13, 1943, and was a warranty deed from Alice Clark, a widow, to Eddie Axley, conveying the real estate, the grantee assuming the mortgage loans and delinquent taxes.
It was further alleged in the amended petition that on January 25, 1945, and within the two years provided in the contract, plaintiff entered into a contract of sale with one W. E. Cradit, the contract and $200 earnest money being placed in escrow. It was alleged the sale was a bona fide one. A copy of the contract was attached as an exhibit and made part of the petition. The contract of sale is noted briefly. It stated that under the agreement between plaintiff and defendant, Mrs. Clark had the right to sell the real estate and that she agreed to sell the real estate and second party (Cradit) agreed to purchase it for $4500, and that the contract and $200 earnest money should be placed in escrow in a named bank. Mrs. Clark agreed to procure from Eddie Axley, as provided by the terms of the agreement between him and her, a warranty deed executed by Eddie Axley and wife, which would convey marketable title. Reference was made to an abstract of title; that the property was subject to a mortgage and that the $4500 was not over and above the mortgage but included it. Other provisions are not of present interest.
The amended petition further alleged that plaintiff caused to be served upon defendant a notice to quit the real estate and a demand for a deed, and requested defendant to meet her in order that they might calculate the profits from the sale and divide the same as agreed upon between them. Copy of this document was attached. Plaintiff further alleged that defendant had paid certain taxes, but she did not know the exact amount he paid the mortgagee, but that there was a substantial profit and she was entitled to onehalf thereof under the agreement, and that defendant had refused to fulfill his part of the agreement.
Under a second cause of action plaintiff incorporated the allegations of her first cause of action, and alleged further that the sale of the real estate under her contract with Cradit was a bona fide sale and she was entitled to have her contract with defendant specifically enforced, and that defendant had failed and refused to make a deed to Cradit. She prayed judgment on her first cause of action for one-half of the profits from the sale as calculated by the court in accordance with the terms of her contract with defendant, and on her second cause of action for a decree of specific performance of the contract between herself and the defendant and that defendant be ordered to execute a deed to Cradit within a time to be fixed by the court and on failure of defendant to perform, the court, by its judgment and decree, vest title in Cradit upon his payment of the purchase price, and that she have such other relief as equity and good conscience afford.
To this amended petition defendant filed a motion, the purpose of which was to have plaintiff allege whether defendant was a single man when he contracted with her and whether defendant and his family were occupying the real estate as their homestead, whether Axley's wife was ...
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Clark v. Axley, 38604
...was an action to enforce a contract for the conveyance of real estate. The case has been before this court previously in Clark v. Axley, 162 Kan. 339, 176 P.2d 256, which was an appeal from an order overruling defendant's demurrer to the amended petition. The detailed summary of the allegat......
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Kansas Homestead Law
...attach decedent's homestead occupied by daughter when decedent's will left daughter no interest in property). [FN123]. See Clark v. Axley, 162 Kan. 339, 343, 176 P.2d 256 (1947). [FN124]. Kline v. Cowan, 84 Kan. 772, 115 P. 587 (1911). [FN125]. Goodman v. Malcolm, 5 Kan. App. 285, 294, 48 P......