JOHNSON
P. J. All the Judges concurring.
OPINION
JOHNSON, P. J.:
This
action was brought by Ernest Heiland in the district court of
Ford county against Albert Ertel and Mary A. Ertel to compel
the specific performance of an alleged contract for sale and
conveyance of a certain quarter-section of land situated in
Ford county. The defendants demurred to the plaintiff's
petition upon the ground that the petition did not state
facts sufficient to constitute a cause of action against
them, which demurrer was sustained. The plaintiff electing to
stand on his petition, judgment was rendered for defendants,
and plaintiff brings the case here for review.
It is
alleged in the plaintiff's petition in the court below
that on the 18th day of September, 1890, and prior thereto,
Albert Ertel was the owner of the southwest quarter of
section 27, in township 26, of range 21 west of the sixth
principal meridian, situated in Ford county, Kansas, and Mary
A. Ertel is the wife of Albert Ertel; that the Edwards County
Bank, of Kinsley, was the agent of the
defendants at that time for the purpose of selling said
lands; that at that time defendants agreed in writing, by
their certain deed and letters, to sell and convey said land
to the plaintiff for the sum of $ 400; that the contract for
the purchase and sale of this land is embodied in the
following letters and a certain deed attached to
plaintiff's petition as exhibits, and form a part of his
petition:
"EXHIBIT
A.
"SHELBINA,
Shelby Co., Mo., Sept. 13, 1890.
"DEAR
SIR: I seat myself to write you a few lines in order to let
you know that we have the right of selling my own land, not
John. If you don't believe me, go to Dodge City and see,
and if you want the land you can have it for the offer made
John, if you can, send us our 200 right away, for we are
about to buy a piece over here, and we want to know right
away so we know what to do; if you can send me the money or
not. I want to know what you are going to do about it as soon
as you get this. You will find out where the deeds is what we
made for August Hessman; in the Edwards Kinsley Bank is where
the deed were sent to. They said they was going to send the
deeds back as soon as they laid their hands on it, so you
will let me know what you are going to do about it soon --
what you are going to do. Write soon and send me John's
letter, for he says he didn't know why you wrote to him
to buy it, for he didn't know what you wanted to write to
him for. He gave me the letter you wrote him. So I want you
to write as soon as you get this. So I will close for this
time.
Frown
your friend, A. ERTEL.
"To
Mr. Helland."
"EXHIBIT
B.
"SHELBINA,
Shelby Co., Mo., September 23.
"Dear
Friend Heiland: I received your letter yesterday, and
was glad to hear you was well. This leaves us all well. Well,
Mr. Heiland, you can go to Kinsley and see
if the deeds are out there yet, and if they are you can get
them and let me know, and you get all the money for the place
all the better for me. I have got till the 15th of October,
that is all the time I have got on the place I have in view,
and if you get the deeds you can have the deeds made out for
400 and send to me, and we will sign them and then you can
leave them in the land agent's hands out there, the one
you got his name, till I get all of my money, and you pay the
taxes for this year, for I am just giving the place away
anyhow. I will write to Kinsley and tell them to give you the
deed and tell them if they have misplaced them they can stand
good for them or you get them. You can send to the Mashel
Bank in Shelbina anyway to make it safe for us both, and I
want to know just what I can do by the tenth of next month,
so I can fix this place out here safe. I don't lose it of
course if I wait till April for the other $ 200. I will have
to have interest on the money, for I will have to pay
interest on what I borrow; so let me know all about your
arrangements, so I can make mine out here, and see about this
deeds. I am out now on that piece of land $ 350, so you see I
ain't making much on it, so I will close. Hoping to
hear from you soon and just what you can do, so write soon.
From your friend, ALBERT ERTEL."
"EXHIBIT
C.
"The
grantors, Albert Ertel and Mary Erte1, his wife, of the
county of Adams and state of Illinois, for and in
consideration of $ 450 in hand paid, convey and warrant to
August Hessman, of the county of Ford and state of Kansas,
the following-described real estate: The southwest quarter of
section No. 27, in township No. 26 south, of range No. 21
west, situated in the county of Ford, in the state of Kansas,
hereby releasing and waiving all right under and by virtue of
the homestead-exemption laws of this state.
"Dated
this 19th day of March, A. D. 1890.
ALBERT
ERTEL.
MARY
ANN ERTEL.
"Signed,
sealed and delivered in the presence of--"
"State of Illinois, County of Adams, ss.
"I,
George W. Cyrus, a notary public in and for said county and
state, do hereby certify that Albert Ertel and Mary A. Ertel,
his wife, who are personally known to me to be the same
persons whose names are subscribed to the foregoing
instrument as having executed the same, appeared before me
this day in person, and acknowledged that they signed, sealed
and delivered the said instrument, including the release and
waiver of the right of homestead, as their free and voluntary
act for the uses and purposes therein set forth.
"Given
under my hand and notarial seal, this 19th day of March,
1890.
[L. S.]
GEORGE W. CYRUS, Notary Public."
"My
commission expires September 20, 1892."
"EXHIBIT
D.
"SHELBINA,
Shelby Co., Mo., Sept. 23, 1890.
"DEAR
SIR: I take my pen in hand to inform you that I have been
informed that my deeds is there made out for August Hessman,
and if they are you can let Ernest Heiland have them, as
Hessman backed out and Heiland had bought, and he will call
for them. If he don't call for them in 10 days you will
send them to Shelbina, Shelby county, Missouri. Everything is
there, deeds and tax receipt, too; so please let me know all
about them as soon as you can, so I remain, yours truly.
MR.
ALBERT ERTEL.
"It
has been 10 or 11 years since I was out there. How is
business out there, Mr. Edwards?"
"EXHIBIT
E.
"SHELBINA
Shelby Co., Mo., Sept. 27, 1890.
"MY
DEAR SIR: I seat myself to ask you if no one has n't got
my deeds. Please send them to me unless they will give $ 500
for them. If any one will leave $ 500 is there and let me
know I will make a deed to that effect. If you have my deeds
please send them all to me to (Shelbina, Shelby county, Mo.)
as soon as you get this. If I can't get that I will keep
it a year longer yet. I received a letter last night saying
they would leave $ 400 in the bank, but I do n't
understand it; it seems as if Joseph
Holtfrench is the way it was wrote, but the letter come from
Camp Point, Ill., and it stated that we could send my
contract to the Edwards County Bank. If there is such a man
saying anything, tell him he can have it for $ 500 cash....
