Degood v. Gettle

• Decision Date: 07 November 1925
• Docket Number: 25,893
• Citation: 240 P. 960,119 Kan. 534
• Parties: J. W. DORSEY DEGOOD, Appellant, v. T. H. GETTLE, Sheriff, and JOHN COLE, Intervener, Appellees
• Court: Kansas Supreme Court

240 P. 960

119 Kan. 534

J. W. DORSEY DEGOOD, Appellant, v. T. H. GETTLE, Sheriff, and JOHN COLE, Intervener, Appellees

No. 25,893

Supreme Court of Kansas

November 7, 1925

Decided July, 1925.

Appeal from Cheyenne district court; WILLARD SIMMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LANDLORD AND TENANT--Attornment--Nature and Elements. Attornment is a recognition by a tenant of a new landlord where a grant has been made by the original landowner who consents that the possession shall pass, and upon the testimony it is held that the one attempting to attorn to the plaintiff was not a tenant of the purchaser who placed him in charge of the property and had no right to surrender the possession to another without the consent of such purchaser.

2. VENDOR AND PURCHASER -- Forfeiture for Nonperformance -- Equitable Relief. Following the rule that equity will relieve from a forfeiture for the nonperformance of conditions in a contract for the sale of land where the circumstances are such that it would be grossly inequitable to enforce forfeiture and where the party asking it can be fully compensated for the nonperformance of the contract, it is held that the court justly granted relief against the forfeiture.

3. DAMAGES--Measure--Destruction of Building--Evidence. The evidence examined and held to be sufficient to uphold the finding as to the damages resulting from the action of plaintiff in tearing down a building erected by the purchaser on the lots sold to him.

4. VENDOR AND PURCHASER--Good Faith and Diligence--Relief from Forfeiture. The purchaser having paid twelve-thirteenths (12/13) of the purchase price of the lots and erected valuable improvements thereon, the court was warranted in relieving him from forfeiture after providing that the plaintiff should be fully protected and compensated.

C. A P. Falconer, of Atwood, and E. E. Kite, of St. Francis, for the appellant.

J. L. Finley, of St. Francis, for the appellees.

OPINION

JOHNSTON, C. J.:

This action was brought by J. W. Dorsey DeGood against T. H. Gettle, as sheriff, to enjoin a sale of real estate upon which the sheriff had levied an execution. John Cole, a purchaser of the property intervened, setting up his interest in the property seized, and a judgment was rendered, from which DeGood appeals.

It appears that on May 1, 1919, DeGood entered into a contract for the sale of two lots to John Cole and Clive Trent, for $ 2,600, payable $ 100 in cash and the balance in payments of $ 50 the first of each of the following months until all was paid, whereupon the plaintiff was to execute a deed. It was stipulated that the purchasers were to pay the taxes on the property and that a failure to make the stipulated payments should constitute grounds of forfeiture. Subsequently and upon agreement of all the parties Trent was released from the contract and Cole assumed all of its obligations. Afterwards Cole erected a building forty-eight by sixty on the lots, called an Air Dome, at a cost of $ 2,200. Payments were made by Cole on the property from month to month until $ 2,400 of the price $ 2,600 had been paid. Before the March, 1923, payment was made Cole made a motor trip to California and sustained injuries in an accident which laid him up for four or five months. Soon after he started on the trip, and on April 9, 1923, plaintiff undertook to forfeit the contract and the payments that had been made by Cole and to take possession of the property. Cole had arranged with one Billington that the latter should care for the property while Cole was absent and might use a part of it for his own purposes. The plaintiff approached Billington and told him that he was taking possession of the property, and at plaintiff's request Billington put a lock on a door and nailed up some doors and windows of the building and made some repairs. Possession was thus taken by plaintiff without notice to Cole of any kind, and shortly afterwards he caused the building to be torn down and the material in it sold to another. It appears that Cole had failed to pay for all the material used in erecting the building and a mechanic's lien had been filed against it and a foreclosure of the same begun. Plaintiff paid and discharged this lien, also paid taxes and insurance on the building that Cole had left unpaid. A judgment against Cole had been obtained by the lumber company for other material, before a justice of the peace, amounting to $ 195, which had been filed in the district court and upon which an execution had been levied on the property, and on July 31, 1923, this action was brought to enjoin the sale.

Upon the testimony the trial court found that the execution was valid and had been properly levied, and that the plaintiff was not entitled to the injunction asked. On the issues formed between the plaintiff and Cole, intervener, it was found that Cole was in default, in that one payment on the purchase price had not been made, that Cole had failed to pay for insurance and taxes on the building, as the contract required, that plaintiff rightfully paid the same, and that plaintiff's interest was such as to warrant him in discharging the mechanic's liens, insurance and taxes which had accrued against the building, as each was a proper charge against Cole's interest under the contract.

It was also found that Cole having made all the payments on the contract price of $ 2,600, except $...