Henderson v. Bell
| Decision Date | 06 July 1918 |
| Docket Number | 21647 |
| Citation | 173 P. 1124,103 Kan. 422 |
| Parties | HENDERSON v. BELL et al. |
| Court | Kansas Supreme Court |
Rehearing Denied Aug. 28, 1918.
A contract giving an option to purchase real property, without limiting the time within which the purchase may be made, is void for the reason that it violates the rule against perpetuities.
Appeal from District Court, Atchison County.
Action by T. A. Henderson against Eugene L. Bell and others, in which defendants John J. Buchanan and Lincoln Buchanan filed a cross-petition against defendant Bell for specific performance. Judgment for plaintiff and for the defendants Buchanan, and defendant Bell appeals. Modified by directing that judgment be entered in favor of defendant Bell against defendants Buchanan, and sale of property directed as ordered by the trial court.
Waggener, Challiss, De Lacy & Brown, of Atchison, for appellant.
C. D Walker and Z. E. Jackson, both of Atchison, for appellee.
The plaintiff commenced this action to foreclose a mortgage given by defendant Eugene L. Bell on certain real property in Atchison county. A number of Bell’s codefendants filed cross-petitions asking for the foreclosure of mortgages given by Bell on the real property, and one of his codefendants filed a cross-petition asking for the foreclosure of a mechanic’s lien on that property. Defendants John J. Buchanan and Lincoln Buchanan filed a cross-petition asking that Bell be compelled to specifically perform a contract for the sale of the property to John J. Buchanan and W. H. Buchanan. Issue was joined between John J. Buchanan and Lincoln Buchanan, on one side, and Bell, on the other side. Judgment was rendered on all the mortgages and on the mechanic’s lien in favor of their holders and against Bell. Judgment was likewise rendered directing Bell to convey the real property to John J. Buchanan and Lincoln Buchanan on their paying $2,600 into court, and directing that the $2,600 be applied in the discharge of the judgments against Bell. Judgment was further rendered that, if the $2,600 was not paid into court the real property should be sold, and the proceeds should be applied in the discharge of the judgments against Bell. He appeals from the judgment requiring specific performance of the contract with John J. Buchanan and W. H. Buchanan.
The contract in question reads as follows:
"This agreement made and entered into this 8th day of February, 1911, by and between Eugene L. Bell and Nannie Bell, his wife, of the first part, and John J. Buchanan and Henry Buchanan of the second part, witnesseth: That first parties agree to sell and second parties agree to buy the following real property situated in Atchison county, Kan.: The S.W. ¼ of the S.W. ¼ of Sec. 10-7-21; also the N.E. ¼ of the N.E. ¼ of Sec. 9-7-21; also the E. ½ of the S.E. ¼ of the N.E. ¼ of Sec. 9-7-21, excepting about one acre in cemetery, to be more particularly described in deed; said land to be paid for in the sum of $4,626.75 cash, as soon as first party presents abstract to said land showing good and merchantable title in Bell, and on the execution of an ordinary warranty deed to second parties; second parties to have sufficient time in which to pass upon said abstract. It is further agreed that first parties shall have the wheat now growing on said land and the right to harvest same, shall cut, stack, and thresh said wheat and deliver to second parties one-third of said wheat, threshed at the machine, first parties to stand all expense of harvesting and threshing. And it is also agreed that, should first parties elect to sell the following 40 acres now occupied by them, to wit: The N.W. ¼ of the S.W. ¼ of Sec. 10-7-21, in Atchison county, Kan.-the second parties shall have the right to purchase said last-mentioned 40 at the agreed price of $65 an acre.
It is further agreed that, if said parties elect to sell said S.W ¼ of the S.W. ¼ of Sec. 10-7-21 at any time in the future, the first parties shall have the right to purchase same at the agreed price of $65 an acre, provided first parties will also buy the balance of the above-described land at the agreed price of $40 an...
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Coulter & Smith, Ltd. v. Russell
...the possibility of a long period of delay before the option could be exercised." Id. (citing as an example Henderson v. Bell, 103 Kan. 422, 173 P. 1124, 1125 (1918)). The present case does not involve the kind of violative language identified in Fisher, nor does it seem to involve violative......
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...property interests which are subject to the rule against perpetuities. Barnhart, 235 Kan. at 515-17, 682 P.2d 112; Henderson v. Bell, 103 Kan. 422, 173 Pac. 1124 (1918). However, modern courts have recognized that the rule bears little relation to modern business practices and thus have lim......
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...subject to the rule against perpetuities when the right of preemption runs for an indefinite period of time. In Henderson v. Bell, 103 Kan. 422, 424-25, 173 P. 1124, 1125 (1918), the parties entered into a contract whereby the sellers, in the event they decided to sell at any time in the fu......