Hughes v. Thistlewood

• Decision Date: 10 November 1888
• Citation: 40 Kan. 232,19 P. 629
• Parties: JOHN J. HUGHES et al. v. P. J. THISTLEWOOD
• Court: Kansas Supreme Court

19 P. 629

40 Kan. 232

JOHN J. HUGHES et al. v. P. J. THISTLEWOOD

Supreme Court of Kansas

November 10, 1888

Error from Sedgwick District Court.

ACTION brought by Thistlewood against Hughes and two others, to compel the delivery of a certain deed. Trial by the court at the March term, 1887, and judgment for the plaintiff. The defendants bring the case to this court. The opinion states the facts.

Judgment affirmed.

Harris Harris & Vermilion, for plaintiffs in error.

Sluss & Stanley, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action to compel the delivery of a deed. It seems that on June 4, 1886, John J. Hughes, who owned real estate in Wichita, and on which he and his family resided, sold the same through an agent, to P. J. Thistlewood for $ 4,750, and out of that sum the broker was to retain $ 143.75 as his commission. On that day a deed was executed by Hughes and wife conveying the property to Thistlewood, which deed was taken by John J. Hughes from his home and presented to the purchaser, who made an individual draft on his house in New York for the purchase-money. But Hughes declined to accept the draft, and they then placed it and the deed in the hands of the defendant L. D. Skinner, cashier of the State National Bank of Wichita, upon the following written stipulation:

"WICHITA, KANSAS, June 4, 1886.

"This deed is to be delivered to H. G. Lee upon payment of this Thistlewood check on New York for forty-seven hundred and fifty dollars; said $ 4,750 to be paid to John J. Hughes, less commission of one hundred and forty-three and seventy-five cents, said Hughes to furnish abstract showing good title to said premises in him.

JOHN J. HUGHES.

P. J. THISTLEWOOD."

The money was collected on the check in due course, in about eight days after it was placed in the hands of Skinner. Then there were some defects in the title, as shown by the abstract furnished by Hughes, and the money was held a few days to examine and remedy these defects. Hughes refused to rectify the defects, and the purchaser waived the matter of abstract, and demanded the deed; but meantime Hughes notified Skinner not to deliver the same, and this action was brought to compel a delivery. The court below found that Thistlewood was entitled to a delivery of the conveyance, and adjudged that the defendants below should deliver the deed, and in case of a failure to do so, the decree rendered should operate as a conveyance of the property sold.

The contention of plaintiffs in error here is, that the property being the homestead, and the stipulation left with Skinner not being signed by the wife, there was not that joint consent which is necessary to the alienation of the property. It is said that because it was understood by Mrs. Hughes to be a cash transaction, her husband had no authority to accept the draft as payment, or to deliver the deed through the hands of Skinner. The...