Neal v. Owings

• Decision Date: 11 December 1920
• Docket Number: 22,760
• Citation: 108 Kan. 73,194 P. 324
• Parties: JEANNETTE NEAL, Appellee, v. M. D. OWINGS and LILLIE R. OWINGS, Appellants, And THE FIRST STATE BANK OF MINNEOLA, Appellee
• Court: Kansas Supreme Court

194 P. 324

108 Kan. 73

JEANNETTE NEAL, Appellee, v. M. D. OWINGS and LILLIE R. OWINGS, Appellants, And THE FIRST STATE BANK OF MINNEOLA, Appellee

No. 22,760

Supreme Court of Kansas

December 11, 1920

Decided July, 1920

Appeal from Clark district court; LITTLETON M. DAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SPECIFIC PERFORMANCE--Contract for Sale of Land--Contract and Deed Placed in Escrow to Await Performance by Purchaser--Purchaser Complied with Contract--Depositary at Request of Vendor Refused Delivery of Deed--Delivery of Deed Ordered. An owner of land employed a broker to negotiate a sale of it at a fixed price and on prescribed terms. The broker procured his wife as a purchaser of the land, notified the owner of the fact and sent him a contract of sale, but the owner found provisions in it that were not satisfactory and then set out conditions which he stated would be satisfactory to him. A contract which met his requirements was prepared and forwarded to him together with a deed ready for execution. The owner did not execute the conveyance at once, stating as a reason for the delay that his wife refused to join in the execution of the conveyance. After consulting with a friend and receiving a letter from the attorney of the purchaser as to the rights and liabilities of the owner and purchaser, the contract was signed, the deed executed by the owner and his wife, and these were placed in the possession of a depositary agreed upon, to be delivered upon compliance by the purchaser with the conditions of the sale. The purchaser found the abstract of title to be satisfactory accepted the conditions of sale and was proceeding to complete the transaction when the owner notified the depositary to withhold delivery of the conveyance, and this request the depositary observed. In an action against the depositary and the owner and his wife, it is held that a valid contract of sale was made, and that by the placing of the executed deed in the hands of the mutually chosen depositary to be delivered upon compliance with the conditions of the contract by the purchaser and the subsequent compliance with these conditions, the purchaser became the equitable owner of the land and entitled to a delivery of the deed.

2. SAME--Refusal to Deliver Deed Not Justified. The notice given by the owner to the depositary to withhold delivery of the instrument, did not justify the depositary in refusing a delivery.

3. SAME--Transfer of Title--Manual Delivery of Deed Not Essential. Under the circumstances a manual delivery of the deed to the purchaser was not essential to the transfer of the equitable title to the land to her.

4. SAME--Action to Compel Delivery of Deed Proper Remedy Upon the refusal of a delivery of the deed the purchaser brought an action against the owner and his wife who were asserting that the contract was invalid and also against the depositary to have adjudicated the right to a conveyance and to compel a delivery of the deed placed in the hands of the depositary. Held, to be a proper remedy.

5. SAME--Memorandum in Writing--Statute of Frauds. The contract, deed and instruction to the depositary as to delivery, constituted a sufficient memorandum in writing to take the transaction out of the statute of frauds.

6. SAME--Voluntary Execution of Deed--No Coercion. The claim, that the execution of the deed was involuntary and invalid because the attorney of the purchaser in a letter to the owner stated that the contract was binding upon him and that if it was not carried out he would bring an action to compel the completion of the contract is without merit.

7. SAME--Advance in Value of Land. The failure of the broker to inform the owner of a slight advance in the value of lands is held under the circumstances not to be a good ground of defense to the action brought by the purchaser.

8. SAME--Identity of Purchaser Known to Vendor. The owner being fully informed that the purchaser was the wife of the broker before the contract and deed were executed, the relationship furnished no ground for refusing to complete the transaction.

9. SAME--Terms of Contract Complied with by Purchaser. The evidence examined, and it is held that it was sufficient to show a substantial compliance with the contract conditions by the purchaser, including the tender of sufficient amount as a cash payment for the land.

10. SAME--Appointment of Receiver--Proper Remedy. It was competent for the court to appoint a receiver to care for crops involved in the sale and to prevent waste and deterioration of the property during the period of litigation.

Robert C. Mayse, of Ashland, for the appellants.

Francis C. Price, of Ashland, for appellee Jeannette Neal, and J. B. Hays, of Minneola, for appellee The First State Bank of Minneola.

OPINION

JOHNSTON, C. J.:

This was an equitable proceeding to compel the delivery of a deed and the completion of a transfer of a tract of land, and from a judgment in favor of Jeannette Neal, the defendants, M. D. Owings and Lillie R. Owings, appeal.

M. D. Owings, who owned five hundred and twenty acres of land, listed the tract for sale with Nate Neal for the fixed price of thirty dollars per acre. About nine months later the agent notified Owings, who was then in California that he had found a purchaser for the tract at the price fixed, one-half of the purchase price to be paid in cash, and the balance to be paid on or before five years, secured by a mortgage upon the land. He sent a contract signed by him in behalf of the owner, and also a general-warranty deed to be executed by the owner to Jeannette Neal, who was the wife of the agent. With this he sent an advance payment of $ 200 as earnest money, and requested that the papers be signed and, with the abstracts, sent to the First State Bank of Minneola with instructions to the bank to deliver the deed on the payment of the first half of the purchase price and the execution of the mortgage. He also stated that the agent's commission was to come out of the cash payment made upon the land. The defendant Owings declined to accept the contract as made and suggested several changes that would satisfy him, namely, that the earnest money should be increased from $ 200 to $ 1,000; that it contain a stipulation that the purchaser would only get one-third of the growing crop, and to provide that he should get no part of the crop unless the first half of the purchase price was paid before the crop was harvested; a recital that Owings did not own or sell a certain windmill and fence on the premises which belonged to another; also that he did not own or sell a crop growing on a small strip of his land that was named. He further required that a statement be placed in the contract as to the exact amount to be paid as the agent's commission. The purchaser agreed to all the changes proposed and a contract was prepared and signed in accordance with the directions of Owings. This, together with a deposit slip showing that the $ 1,000 of earnest money had been deposited to his credit in the bank, was sent to Owings. It was also stated that the purchaser was ready to comply with the conditions of the contract as soon as the abstracts were produced showing a merchantable title, and further that the commission of the agent was $ 415, which was to be taken out of the cash payment when the abstracts were approved. Within a few days Owings wrote the agent that his wife had declined to sign the deed, that he had endeavored to procure her signature but had been unable to do so and stated some of her objections. In reply to this letter the agent wrote that the purchaser insisted on the completion of the contract that had been made in accordance with his directions and referred him to Judge Price, who had been employed to represent the purchaser. A letter was written by Judge Price stating that he had been instructed by the purchaser to take the matter up with Owings and that if the transfer was not made to bring a suit to compel specific performance. He advised them as to the nature of the contract that had been made and the obligations of the parties under it, asking that they write him at once and that unless the contract was carried out suit would be immediately commenced. Shortly after receiving the Price letter, Owings and his wife joined in the execution of the deed, which they forwarded to the bank with instructions to the bank to bring the abstracts up to date and to close the transaction according to the contract. Directions were also given as to the release of certain mortgages and advising that when the first payment was made and the note for the unpaid balance and the mortgage securing its payment were executed, to deliver the deed to the plaintiff, and then to forward the note and mortgage to him together with a certificate of deposit for the cash payment. When the bank received the contract, the deed, abstracts and other papers, it brought the abstracts up to date and presented them to the plaintiff. Upon examination of the abstracts by...