Eakin v. Wycoff
Citation | 118 Kan. 167,234 P. 63 |
Decision Date | 07 March 1925 |
Docket Number | 25,718 |
Parties | M. E. EAKIN, Appellee, v. WILL H. WYCOFF et al., Appellants |
Court | United States State Supreme Court of Kansas |
Decided January, 1925.
Appeal from Neosho district court; SHELBY C. BROWN, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
SPECIFIC PERFORMANCE--Parol Contract to Convey Real Estate--Joint Consent of Husband and Wife--Statute of Frauds--Part Performance. In a suit by the vendee for the specific performance of a parol contract to convey real estate, the record is examined and it is held: (a) that the contract is not so indefinite as to render specific performance impossible; (b) there is sufficient evidence to support the finding of the court of the joint consent of husband and wife to the alienation of the homestead; and (c) that there was sufficient part performance by the vendee to take the case out of the statute of frauds; and further held, that there was no such laches or failure to perform on the part of the vendee nor such harshness of bargain as prevented a decree of specific performance.
John J Jones, and Hugo T. Wedell, both of Chanute, for the appellants.
T. R. Evans, of Chanute, for the appellee.
OPINION
This is a suit for specific performance. It was tried to the court, who made findings of fact and conclusions of law and rendered judgment for plaintiff. The defendants have appealed.
The petition filed in June, 1923, alleges in substance that in March, 1922, plaintiff was the owner of 375 shares of the capital stock of the Great Northern Oil and Petroleum Company, and 125 shares of the capital stock of The Wapello Oil and Gas Company, each of the par value of $ 100; that defendants were the owners of certain described real property in Chanute; that plaintiff and defendant Will H. Wycoff entered into a parol agreement whereby defendants exchanged the real property owned by them, subject to a $ 5,000 mortgage thereon, which plaintiff was to assume, and pay plaintiff $ 2,000 in cash for the shares of stock owned by, plaintiff; that the certificates of the shares of stock were to be held by plaintiff until the $ 2,000 was paid; that within sixty days from making the agreement the defendants vacated the real property and delivered possession thereof to plaintiff, but through inadvertence the plaintiff failed to require deed; that since the exchange of properties defendants have exercised dominion and control over the stock transferred to them and have voted the same at a stockholders' meeting and have received and accepted the benefits flowing from the ownership thereof, and the plaintiff has at all times been in possession and control of the real property with the knowledge and consent of defendants; that in March, 1923, plaintiff being indebted to one Robinson, made to him a quitclaim deed for the real property, and in June, 1923, plaintiff had an opportunity to sell the real property to one Bray, and that defendants executed a deed to the property at that time, subject, however, to a certain stipulation signed by plaintiff and defendants. This stipulation recites, in substance, that defendants have made a quitclaim deed to Robinson for the property in controversy, which was to be placed in escrow in a named bank under a contract for the sale of the property by Robinson to Bray; that if the sale of the property is not completed the deed should be returned to defendants, otherwise to be delivered to Bray. The sale to Bray was for $ 7,500 above the mortgage, which sum, less the taxes and expense of sale, was to be paid to defendants, and it contained this provision:
This was accepted and agreed to by Robinson.
Plaintiff further avers that he had at all times been ready and willing to deliver the certificates of stock and they were tendered into court, and that defendants had refused to make a deed in accordance with the contract and refused to pay the $ 2,000 due plaintiff thereunder. The prayer was that the defendants be decreed to have no right in the fund impounded under the stipulation, that they be ordered to execute a deed to the property, and that plaintiff have judgment against them for $ 2,000.
The answer admitted the ownership of the properties in March, 1922, as alleged in the petition, but denied the other allegations of the petition; averred that the real property described in the petition was the homestead of defendants and there had been no joint consent for its alienation; alleged laches on the part of plaintiff; and that it would be equitable and unjust to enforce specific performance because of the decrease since March, 1922, of the value of the shares of stock and the increase in the value of the real property; and averred that defendants were entitled to the funds impounded by the stipulation. To this answer the plaintiff filed a general denial.
At the conclusion of the evidence the court made findings of fact as follows:
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