McNutt v. Nellans

• Decision Date: 07 May 1910
• Docket Number: 16,383
• Citation: 108 P. 834,82 Kan. 424
• Parties: M. E. MCNUTT et al., Appellees, v. JOHN L. NELLANS, Appellant
• Court: Kansas Supreme Court

108 P. 834

82 Kan. 424

M. E. MCNUTT et al., Appellees, v. JOHN L. NELLANS, Appellant

No. 16,383

Supreme Court of Kansas

May 7, 1910

Decided January, 1910.

Appeal from Decatur district court; WILLIAM H. PRATT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SPECIFIC PERFORMANCE -- Doubtful or Unmarketable Title. Equity will not compel a purchaser under an executory contract for the sale of land to accept the title if doubtful or unmarketable.

2. SPECIFIC PERFORMANCE -- "Doubtful" Title Defined. A title is doubtful if it exposes the party holding it to the hazard of litigation.

3. SPECIFIC PERFORMANCE -- Vendor's Title Held Doubtful. In an action to recover money paid on the purchase price of land, on account of the failure of the vendor to furnish an abstract showing clear title, it appeared that the vendor's title rested upon a deed executed by a foreign assignee solely by virtue of an order of a court in the state of Iowa. Before the action was tried the vendor obtained a judgment quieting his title, upon service by publication, against the foreign assignor, the assignee and the party to whom the assignee had conveyed, and asked for specific performance against the plaintiff. Held, that the title tendered is so doubtful that the plaintiff should not be compelled in equity to accept the same.

4. CONTRACTS -- Action to Recover Money Paid -- Prayer by Defendant for Specific Performance -- Estoppel to Assert Invalidity of Contract -- Homestead -- Joint Consent. In such an action, where the defendant answers alleging a full compliance with the terms of the contract and asks for specific performance and judgment for the balance of the purchase money, and offers proof showing the execution by himself and wife of a deed conveying the land to the plaintiff, he is estopped to claim in the same action that the contract for the sale of the land is void on the ground that the land comprises a homestead occupied by himself and wife and that the wife failed to join in the contract.

J. F Peters, for the appellant.

L. C. Uhl, and L. C. Uhl, jr., for the appellees.

OPINION

PORTER, J.:

The McNutt brothers sued John L. Nellans to recover $ 500 paid him on a contract for the purchase of 160 acres of land in Decatur county, alleging a failure on his part to furnish an abstract showing a clear title, according to the terms of the contract. The defendant contended that he had fully complied with his contract, and asked for specific performance and a judgment against the plaintiffs for the balance of the purchase price and damages. The court found the facts and conclusions of law separately, and gave judgment for the plaintiffs. The defendant appeals.

The contract for the sale of the land was made April 11, 1907. At that time the plaintiffs paid the defendant $ 500, and agreed to pay the balance of $ 5500 July 1, 1907, when the deed and abstract of title were to be delivered. The deed to the land was executed by the defendant and his wife in June, and deposited in a bank agreed upon as a depositary. At the same time the abstract of title was sent to the plaintiffs, who retained it until July 15, when it was returned with a request for certain affidavits and requiring the payment of taxes. These requests were complied with sometime in July. The abstract showed title in the Lewis Investment Company, of Des Moines, Iowa, which took a conveyance of the fee October 12, 1889. Afterward, in 1895, the investment company, which was a corporation organized under the laws of the state of Iowa, made a voluntary assignment for the benefit of its creditors. On the first of June, 1897, the assignee obtained an order of the district court of Polk county, Iowa, authorizing him to convey the land in question, and the title of the defendant rests upon a deed executed by the assignee solely by virtue of the order of the Iowa court.

August 3, 1907, the attorneys for the plaintiffs notified the defendant that the abstract was not sufficient, for the reason that it failed to show a decree or order of a Kansas court authorizing the foreign assignee to convey the land. In the same letter the defendant was notified that unless the abstract was perfected in this respect on or before August 8 the contract would be terminated and the plaintiffs would demand the return of the $ 500.

There is no serious contention here that the deed of the foreign assignee conveyed any title. (Thompkins v. Adams, 41 Kan. 38, 20 P. 530; Watson v. Holden, 58 Kan. 657, 50 P. 883.) The defendant concedes that his title was defective, but insists that he was entitled to a reasonable time within which to perfect it. In this we concur; and it may be said that the five days given him by the letter of August 3 was not a reasonable time to perfect his title. ( Bell v. Sternberg, 53 Kan. 571, 574, 36 P. 1058.) The main contention of the defendant is that before the judgment was rendered in this action he had commenced a suit in the same court to quiet his title, and had obtained a judgment which perfected it; and the court finds that such suit was duly commenced, that service was obtained on the several defendants therein by publication, and a decree was duly rendered quieting the title in the defendant. That decree was rendered on the 18th day of October, 1907, several months before the judgment in this case, and the defendant relies upon the doctrine that equity will not relieve against a sale of land for a defect in the title of the vendor if at the time of the decree he is able to make a good title. The soundness of the general rule may be granted. (Frederick v. Birkett, 37 Kan. 536; Bell v. Sternberg, supra.) But equity will not, by a decree for specific performance, compel a party to accept a title which is so doubtful that it may be exposed to litigation. The court will not cast upon him the risk of litigation and the embarrassment of a questionable title. (Townshend v. Goodfellow, 40 Minn. 312, 41 N.W. 1056; Daniel v. Shaw, 166 Mass. 582, 44 N.E. 991; Conley v. Finn, 171 Mass. 70, 50 N.E. 460; 26 A. & E. Encycl. of L. 111; Vought et al. v. Williams, 120 N.Y. 253, 24 N.E. 195; Morrison v. Waggy et al., 43 W.Va. 405, 27 S.E. 314; Fleming et al v. Burnham et al., 100 N.Y. 1, 2 N.E. 905; Simon v. Vanderveer, 155 N.Y. 377, 49 N.E. 1043.)

The objection which the plaintiffs still make to the title is that the judgment was rendered upon service by publication and may be vacated at any time within three years. The doctrine, however, is established by numerous decisions that the title of a purchaser in...