Deardorff v. Dary

• Decision Date: 15 September 1897
• Docket Number: 101
• Citation: 6 Kan.App. 846,50 P. 107
• Parties: ELLEN DEARDORFF v. JAMES W. DARY
• Court: Kansas Court of Appeals

50 P. 107

6 Kan.App. 846

ELLEN DEARDORFF v. JAMES W. DARY

No. 101

Court of Appeals of Kansas, Southern Department, Western Division

September 15, 1897

September 15, 1897,

Error from Rice District Court. Hon. J. H. Bailey, Judge. Affirmed.

This action was begun in the District Court of Rice County, on August 31, 1891, by Ellen Deardorff, as plaintiff, to recover from James W. Dary, as defendant, the sum of four hundred dollars, with interest from May 19, 1890, at six per cent per annum. The petition alleged that said sum was due and payable as damages by reason of the defendant's neglect failure and refusal to comply with the conditions of a certain written agreement made by the said parties, which had been fully executed and performed on the part of the plaintiff below. The written contract is as follows:

"Contract for Warranty Deed.--This agreement, made this nineteenth day of November, A. D. 1889, by and between James W. Dary, of Rice County, State of Kansas, party of the first part, and Ellen Deardorff, of Ellsworth County, Kansas, party of the second part,

"Witnesseth that the said party of the first part, in consideration of the payments and agreements hereinafter made by the party of the second part, agrees to sell and convey by good and sufficient deed of general warranty, on or before May 19 1890, the following-described real estate: Commencing at a point forty rods south of the northeast corner of the west half of the southeast one-fourth of section 5, township 20 range 8 west, thence west forty rods, south twenty rods, east forty rods, north twenty rods to the place of beginning, containing five acres, in the county of Rice and State of Kansas.

"In consideration of the above agreement to convey, said party of the second part agrees to pay to said party of the [first] part for said real estate the sum of four hundred dollars to be paid as follows: The sum of four hundred dollars to be paid in hand, the receipt whereof is hereby acknowledged.

"In witness whereof the said parties have hereunto affixed their hands and seals the day and year last above written.

(Signed)

JAMES W. DARY.

ELLEN DEARDORFF."

Defendant's answer, after stating that he had resided in the State of Texas since April, 1890, averred:

"That at the time the contract was made with plaintiff it was understood that the said land described therein would have to be sold at sheriff's sale so as to perfect the title to said real estate. That plaintiff well knew such fact and that the only way in which a title to said land could be made to her was by such sale, and it was orally agreed that the defendant would cause said land to be sold and have a deed made thereto to said plaintiff which should make her a complete and full title, free of all liens or incumbrances, to said land."

Then follows a statement that defendant, at the time the contract was made, was the owner of a first mortgage on said land, that the same had been foreclosed and decreed by the court to be a first lien, and that the land had been ordered sold to satisfy the same; that defendant was to buy the land at the sheriff's sale and cause the title to be made to plaintiff under said sale; that defendant did order the land sold under the foreclosure proceedings, and that by mistake it was bid off in the name of John Deardorff, the husband of plaintiff; that the sale was confirmed by the court and a sheriff's deed for the land was executed to John Deardorff; that this was done by mistake, and that John Deardorff had no interest in the land. It was further averred:

"That the plaintiff at all times was the owner of an equitable interest in said land, after the execution of said contract sued on, and is now, and that the said John Deardorff holds the legal title to said land in trust for the said plaintiff. But defendant says that after the execution of said contract and on the same day that the said sheriff's deed was executed to said John Deardorff, the Central State Bank of Geneseo filed for record in the office of the clerk of this court an abstract of a judgment recovered before a justice of the peace against said plaintiff, Ellen Deardorff, and said John Deardorff, which at said time became and was a lien on all of said plaintiff's interest in said land. That said judgment was for the sum of $ 233.59 and costs to the amount of $ 10.50. That thereafter the said Central State Bank, by virtue of its said judgment, caused an execution to issue on said judgment, and the same was levied upon...