Nelson v. Robinson

Decision Date07 March 1959
Docket NumberNo. 41245,41245
Citation184 Kan. 340,336 P.2d 415
PartiesAlbert J. NELSON, Appellee, v. M. L. ROBINSON and Katie M. Robinson, his wife, Appellants.
CourtKansas Supreme Court

Syllabus by the Court

1. When a trial court, sitting as a court of equity in an action to forfeit and cancel a contract for the sale of land on a crop payment plan, has before it all the property involved, all the parties claiming rights thereto, and their respective claims, it may and should determine all rights of the parties and render an appropriate decree with respect thereto in accord with the demands of justice.

2. The record in an action such as is described in the first paragraph of this syllabus examined, in the light of the facts, conditions and circumstances set forth in the opinion, and held, to disclose no error warranting a reversal of the judgment.

Corwin C. Spencer, Oakley, argued the cause, and C. A. Spencer, Oakley, was with him on the briefs for appellants.

Leon N. Roulier, Colby, argued the cause and was on the briefs for appellee.

PARKER, Chief Justice.

This was an action to cancel a written contract for the sale and purchase, on what is commonly known as a crop payment plan, of an improved section of land in Thomas County, Kansas. The defendants appeal from an adverse judgment and the overruling of their motion for a new trial.

The contract, executed on September 18, 1952, provided for a sale of the land in question from plaintiff, Albert J. Nelson of Thomas County, to defendants, M. L. Robinson of Lakin, Kansas, and Katie M. Robinson of Denver, Colorado, who were husband and wife, for the sum of $48,000, of which $2,000 was to be paid in cash on execution of the contract, $8,000 on or before December 31, 1952, and the balance of $38,000, with interest at four per cent per annum, by paying Nelson a one-fourth share of any and all crops grown or produced on the land, including all rentals received for pasture of livestock thereon, through a designated escrow agent.

The contract also provided that all payments under its terms were to be made to the escrow agent and were to be applied first to accrued interest and then to the unpaid balance of the purchase price and, if interest was not paid by crop or rental share, such interest was to be paid in any event on or before December 1st of each year; that at least two hundred acres of the land must be put into cash crop each year unless otherwise agreed by the parties; that the Robinsons should make prompt and accurate accounting to Nelson; his agent or assigns, for all crops produced on the land upon the completion of the harvest thereof and at such other times as Nelson might demand; that total payments made should not exceed the sum of $10,000 in any one calendar year; and that the Robinsons should pay all taxes lawfully levied against the real estate as and when due. It also contained express stipulations to the effect that time was of the essence of the agreement and if the Robinsons failed by pay the balance of the purchase price with interest thereon as and when it became due and payable, as therein provided, or failed to pay taxes levied against the real estate, or failed to perform any of the covenants therein required of them Nelson, at his option, could declare the contract forfeited and cancelled, in which event he would be entitled to retain all payments theretofore made under its terms as and for liquidated damages and as rental and to have returned to him the deed to the real estate, in possession of the escrow agent, whereupon the Robinsons would relinquish possession of such real estate and every part thereof without further notice of demand.

Plaintiff commenced this action on December 24, 1957, by filing a petition the sufficiency of which, from the standpoint of stating a cause of action for cancellation of the contract, is not in question. He made the contract, on which he had endorsed all payments claimed by him to have been made under its terms, a part of such pleading and, among other things, asserted he was entitled to its cancellation and forfeiture because the defendants had failed, as therein required, (1) to pay the interest due on December 1, 1957; (2) to pay the first half of taxes due on the land on December 20, 1957; (3) to make an accounting of crops produced on the land upon the completion of harvest during the crop year of 1957; and (4) to pay him the approximate sum of $958, which he alleged to be one-fourth of the amount ($3,835) received by them, as soil bank payments by reason of having placed such land in the Federal Acreage Reserve Program. In the prayer of the petition plaintiff asked for cancellation and forfeiture of the contract, possession of the real estate therein described, and for any and all other relief the court might deem just and equitable.

In their answer to the petition defendants admit execution of the contract attached to the petition; deny they had violated any of its terms as charged by the plaintiff; allege full performance in accord with its terms; admit making all payments endorsed on the contract; point out that such endorsements failed to include the $2,000 paid on the date of the execution of the contract; and assert that the sum total of all payments of principal and interest, made under its terms, amounted to $18,644.85.

Under further allegations of their answer defendants state that on December 30, 1957, which it is to be noted was subsequent to the date of the commencement of this action, they tendered and paid to the escrow agent $961.16 in payment of the balance of the 1957 interest then due but were later informed plaintiff had directed such agent not to receive that payment; assert they have paid all taxes assessed against the property from the date of the execution of the contract down to and including the last half of the 1956 taxes; disclose that on December 31, 1957 (also after the date of the commencement of the action) they paid the first half of the 1957 taxes, referred to in the petition; aver that they are now in possession of the real estate and have made lasting and valuable improvements thereon (describing them); deny plaintiff is entitled to any part of the soil bank payments from said land so long as two hundred acres or more is retained for cash crops, but tender one-fourth of all such payments received by them if their position that plaintiff is entitled to no part thereof is not upheld; deny they have failed to render an accunting, as provided for by the contract; admit that during the crop year of 1957 milo in an amount approximating 4,873 bushels was raised on the land, but assert such grain was wet and in no condition for marketing, hence they are in no position to render an accurate accounting thereof; assert plaintiff is estopped from claiming strict performance of the contract insofar as time of payment in concerned in that he had therefore waived the time of payment of both interest and taxes by accepting payments after the became due and payable; tender into court all past due payments and interest on the contract; and pray that plaintiff recover nothing in the action and that all costs incurred therein be assessed against him.

In his reply plaintiff denies each and every allegation and averment of new matter stated in the answer.

With issues joined as related the court proceeded to hear evidence offered by the respective parties and arguments by counsel. At the close of the trial it stated in substance the facts disclosed by the evidence did not justify a strict forfeiture of the contract but, in the exercise of its jurisdiction as a court of equity, warranted foreclosure of that instrument as an equitable mortgage. It then rendered judgment accordingly.

The journal entry of judgment, which is approved by counsel for the parties and is on file in this court, includes most of the findings of fact made by the trial court as well as the judgment and should be quoted at some length. Pertinent portions thereof read:

'The Court, after hearing all of the evidence and the argument of counsel, finds that this suit was filed on December 24, 1957, and that the defendants were at the time in default on the contract sued on herein; that the defendants were at that time twenty-four (24) days in default on payment of interest, and four (4) days in default on payment of the real estate taxes.

'The Court further finds that a strict forfeiture of the contract should not be allowed and that this action should be treated as a foreclosure in equity, and that the plaintiff under the contract is the holder of an equitable mortgage against said real estate.

'The Court further finds that less than one-third ( 1/3) of the purchase price has been paid; that the original sale price under the contract is $48,000.00; that the balance due on principal is $36,069.66; that the accrued interest to December 30, 1957, is $961.16; that the interest which has accrued from December 30, 1957, to this date is $331.80; that the total amount due under said equitable mortgage is $37,362.62, plus interest at the rate of four (4) per cent per annum from this date.

'The Court further finds that said equitable mortgage should be foreclosed and that the period of redemption should be set as six (6) months from this date unless the defendants shall pay into court within ten (10) days from this date the sum of $1,918.16 (this amount includes the $961.16 delinquent interest, above mentioned, and $957 which the trial...

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16 cases
  • Car-X Service Systems, Inc. v. Kidd-Heller
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 5, 1991
    ...the guise of equitable relief. The district court did not believe that Kansas law was that rigid. Nor do we. In Nelson v. Robinson, 184 Kan. 340, 345, 336 P.2d 415, 420 (1959), the Kansas Supreme Court spoke as We have no quarrel with decisions (citations omitted) cited by defendants, which......
  • Barnett v. Oliver
    • United States
    • Kansas Court of Appeals
    • August 20, 1993
    ...an in personam judgment against the Hamills for the entire balance due under the contract? The Barnetts rely on Nelson v. Robinson, 184 Kan. 340, 336 P.2d 415 (1959), as support for the trial court's decision to enter an in personam judgment against the Hamills for the entire balance due un......
  • Lewis v. Premium Inv. Corp.
    • United States
    • South Carolina Supreme Court
    • August 5, 2002
    ...v. American Roofing Supply of Colorado Springs, Inc., 919 P.2d 879 (Colo.Ct.App.1996); Ellis v. Butterfield, supra; Nelson v. Robinson, 184 Kan. 340, 336 P.2d 415 (1959); Perkins v. Penney, 387 A.2d 205 (Me.1978); Rothenberg v. Follman, 19 Mich.App. 383, 172 N.W.2d 845 (1969); O'Meara v. Ol......
  • Reno v. Beckett
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 14, 1977
    ...a waiver, unless some elements of estoppel can be invoked." Long v. Clark, 90 Kan. 535, 135 P. 673 (1913). See also, Nelson v. Robinson, 184 Kan. 340, 336 P.2d 415 (1959). As discussed above, the elements of estoppel are not present here. Appellees did not explicitly or implicitly waive the......
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1 books & journal articles
  • Liquidated Damages - When Is the Claimant Entitled to Prejudgment Interest?
    • United States
    • Kansas Bar Association KBA Bar Journal No. 73-5, May 2004
    • Invalid date
    ...77 273 Kan. 679, 44 P.3d 1244 (2002). 78 Id. at 686-88. 79 Id. at 690-91. 80 Id. at 691. 81 Id. at 692 (citing Nelson v. Robinson, 184 Kan. 340, 344-45, 336 P.2d 415 (1959)). 82 In re Conservatorship of Huerta, 273 Kan. 97, 41 P.3d 814 (2002) (consolidated cases involving breach of fiduciar......

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