Eakin v. Wycoff

Citation118 Kan. 167,234 P. 63
Decision Date07 March 1925
Docket Number25,718
PartiesM. E. EAKIN, Appellee, v. WILL H. WYCOFF et al., Appellants
CourtUnited States State Supreme Court of Kansas

Decided January, 1925.

Appeal from Neosho district court; SHELBY C. BROWN, judge.

Judgment affirmed.

SYLLABUS

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.

Harvey J. Harvey, J., Burch, J., dissenting.

OPINION

HARVEY, J.:

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:

"It is understood that M. E. Eakin is making some claim to said property, and unless he makes some adjustment of said claim with Will H. Wycoff, or commences some legal proceedings to assert said claim within thirty days from the date hereof, he is to be considered as having waived all such claim to said property. If any legal proceedings are brought, then the disposition of said money by said John L. Robinson shall abide the decision of said controversy."

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:

"1. Sometime in the month of March, 1922, in the city of Chanute Neosho county, Kansas, the plaintiff, M. E. Eakin, and the defendant, Will H. Wycoff, entered into an oral agreement for the exchange of property, in which the defendant, Will H. Wycoff, was to transfer to M. E. Eakin the south thirty feet of lot 6 and the north thirty-five feet of lot 7, and the south thirty feet of lot 5, and the north twenty-five feet of lot 6, all in block 6, Allen's addition to the city of Chanute, Kansas, subject to mortgage of $ 5,000, which Eakin assumed and agreed to pay, and to pay M. E. Eakin the sum of two thousand dollars, for all of which the said M. E. Eakin was to transfer to the said Will H. Wycoff three hundred and seventy-five shares of stock in the Great Northern Oil and Petroleum Company and one hundred and thirty-five shares of stock in the Wapello Oil and Gas Company.

"2. The real property above described owned at the time of said oral agreement by Will H. Wycoff and Maude Wycoff, his wife, was occupied by them as their homestead.

"3. On May 11, 1922, pursuant to said agreement, Will H. Wycoff and Maude Wycoff, his wife, moved out of said property and occupied rental property thereafter and never returned to their former residence to occupy the same. Two of the keys to the house were delivered to M. E. Eakin through the son of the plaintiff. The Wycoffs never claimed any ownership or right of possession over said property from the time they left the same in pursuance of said contract until on or about the 10th day of May, 1923, when Will H. Wycoff by letter notified the plaintiff herein that the deal they had talked of fourteen months previous thereto was null and void.

"4. The plaintiff is a resident of Grove City, Pennsylvania, and never did move into the property or rent the same. But during the months that intervened from the time of the said oral agreement in March, 1922, until the date on which Wycoff by letter attempted to call the deal off, the said plaintiff paid the taxes on said property for the years 1921 and 1922, and paid for the insurance on the garage on said described real estate. This insurance that was paid for on the garage was ordered during the month of May, 1922, by Wycoff, and the policy made out to Eakin at the request of the said Wycoff, and the premium on the same was paid by the plaintiff, Eakin. During said period said plaintiff paid the interest on the mortgage of five thousand which was existing on the real property and which was in existence at the time of the contract between the parties.

"5. During the period above stated the said Maude Wycoff, wife of the defendant Will H. Wycoff, was consenting and acquiescing in the agreement made between her husband and M. E. Eakin in March, 1922, to the real estate herein described. Her husband testified that he talked the matter over with her about the trade so that she knew about it and moved out of her home in pursuance thereof.

"6. On the 22d day of March, 1923, M. E. Eakin made a deed to the property to J. L. Robinson as security for a debt that he then owed him, and soon thereafter, during the month of April, 1923, Wycoff stated to said Robinson that he would make a deed to him, Robinson, and which had been requested by Eakin, but afterwards he refused to make such deed.

"7. The shares of stock of the two oil companies above mentioned which were to be transferred to Wycoff for the real property were never delivered until they were mailed to Wycoff by registered letter on the 13th day of June, 1923, which tender was refused by Wycoff.

"8. On the 7th day of May, 1923, M. E. Eakin mailed a letter to Wycoff to Grove City, Pennsylvania, which was received by him in which Eakin said that the Wapello stock was enclosed, but had not enclosed said stock, and on that same date M. E. Eakin mailed to Wycoff at Chanute, Kansas, the Wapello shares of stock and Wycoff refused to take said letter out of the office and it was returned to the plaintiff. The letter first above referred to was received by Wycoff on the 10th day of May, 1923, and upon receipt of the same Wycoff immediately wrote a letter to Eakin stating to him that the deal was off. This was the first time that Eakin knew or had any notice from Wycoff that Wycoff would not close the deal.

"9. The condition as to title of all the property remained the same as...

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11 cases
  • In re Cox
    • United States
    • U.S. Bankruptcy Court — District of Kansas
    • June 18, 2009
    ...an alienation, not a joint act of alienation."). 17. Ralston v. Wichita Nat. Gas Co., 81 Kan. 86, 105 P. 430 (1909). 18. Eakin v. Wycoff, 118 Kan. 167, 234 P. 63 (1925). 19. Id. 20. K.S.A. § 60-2303 (previously 60-3503). 21. Hughes v. Cressler, 130 Kan. 533, 287 P. 271 (1930). 22. Id.; Cole......
  • Shell v. Strong
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 5, 1945
    ...Co. v. Harrison, 145 U.S. 459, 473, 12 S.Ct. 900, 36 L.Ed. 776; Willard v. Tayloe, 8 Wall. 557, 570, 571, 19 L.Ed. 501; Eakin v. Wycoff, 118 Kan. 167, 234 P. 63, 67; Anderson v. Anderson, 251 Ill. 415, 96 N.E. 265, 267, 268, Ann.Cas.1912C, 556; Harris v. Greenleaf, 117 Ky. 817, 79 S.E. 267,......
  • Smerchek v. Hamilton
    • United States
    • Kansas Court of Appeals
    • February 15, 1980
    ...of a stipulation as to time does not necessarily render the agreement void. (Leis v. Sinclair, 67 Kan. 748, 74 P. 261; Eakin v. Wycoff, 118 Kan. 167, 171, 234 P. 63; Price v. Brodrick, 183 Kan. 71, 325 P.2d "In Campbell v. Warnberg, 133 Kan. 246, 299 P. 583, the principle was expressed with......
  • Link's Estate v. Wirtz
    • United States
    • Kansas Court of Appeals
    • January 14, 1982
    ...date the parties entered into the contract and the circumstances then existing, not in the light of subsequent events. Eakin v. Wycoff, 118 Kan. 167, 174, 234 P. 63 (1925); 81 C.J.S. Specific Performance § 47 p. 824; 71 Am.Jur.2d, Specific Performance § 81; 11 A.L.R.2d at 397. See Haase v. ......
  • Request a trial to view additional results
1 books & journal articles
  • Kansas Homestead Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 65-04, April 1996
    • Invalid date
    ...recovery would be the debtors' equity in the nonexempt assets after satisfaction of the secured creditor's lien. [FN184]. Eakin v. Wycoff, 118 Kan. 167, 173, 234 P. 63 (1925); Hafer v. Hafer, 33 Kan. 449, 464, 6 P. 537 (1885). [FN185]. Coughlin v. Coughlin, 26 Kan. 116, 119 (1881) (agricult......

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