Luther v. Hekking
| Decision Date | 11 February 1922 |
| Docket Number | 23,498 |
| Citation | 204 P. 523,110 Kan. 478 |
| Parties | S. E. LUTHER and C. M. LUTHER, Appellants, v. W. M. HEKKING and S. MARION HEKKING, Appellees |
| Court | Kansas Supreme Court |
Decided January, 1922
Appeal from Douglas district court; HUGH MEANS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
VENDOR AND PURCHASER--Option to Forfeit--Overdue Payments Accepted by Vendor--Notice of Intention to Forfeit Should Be Given Purchaser. The vendor of land, sold under contract giving the vendor option to forfeit for failure to make payments promptly, who waives defaults and accepts overdue payments may not afterwards exercise his privilege without notifying the vendee of intention to forfeit and allowing reasonable time for performance.
George K. Melvin, and R. E. Melvin, both of Lawrence, for the appellants.
John Q. A. Norton, and Walter G. Theile, both of Lawrence, for the appellees.
The action was one of ejectment. Judgment was rendered for the defendants, on the pleadings and opening statement of counsel for the plaintiffs. The plaintiffs appeal.
The petition was in the abbreviated form permissible under the statute. The facts were that the Luthers sold the land to the Hekkings, who went into possession. The consideration was $ 5,000, to be paid as follows: $ 25 cash; $ 25 on June 1, 1919; and $ 25 on the first day of each succeeding month until the whole sum, with interest on deferred payments, payable monthly, should be paid. The vendees were irregular in making payments. After November 1, 1919, nothing was paid until March 3, 1920, when $ 126.22 was paid. At that time the total payments amounted to $ 385.99, a sum less than the monthly payments due, with interest, and interest on the deferred payments. The contract of sale provided for forfeiture, at the option of the vendors, in case of default in making any payment. While the contract was not read to the court, its terms were sufficiently stated, and there is no dispute that the forfeiture provision was as follows:
"And in case of the failure of said party of the second part to make either of the payments or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit the payments made by him on this contract, and such payments shall be applied by said parties...
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...to do so and a reasonable opportunity to make the delinquent payment. (Sullivan v. Burcaw, 35 Idaho 755, 208 P. 841; Luther v. Hekking, 110 Kan. 478, 204 P. 523; Wadham v. McVicar, 115 Wash. 503, 197 P. Quinn v. Olson, 34 Minn. 422, 26 N.W. 230.) The supreme court of the United States, in S......
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... ... 762, 202 ... P. 70; Osterhout v. Brandts, 114 Kan. 537, 220 P ... 171. See, also, Pickens v. Campbell, 104 Kan. 425, ... 179 P. 343; Luther v. Hekking, 110 Kan. 478, 204 P ... 523. In a contract for the sale of property upon periodical ... payments, the equitable relation of mortgagor ... ...
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...762, 202 P. 70; Osterhout v. Brandts, 114 Kan. 537, 220 P. 171. See, also, Pickens v. Campbell, 104 Kan. 425, 179 P. 343; Luther v. Hekking, 110 Kan. 478, 204 P. 523.) In contract for the sale of property upon periodical payments, the equitable relation of mortgagor and mortgagee does not d......
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