Snyder v. Wheeler

• Decision Date: 08 January 1910
• Docket Number: 16,256
• Parties: J. W. SNYDER, Appellee, v. A. C. WHEELER, Appellant
• Court: Kansas Supreme Court

106 P. 462

81 Kan. 508

J. W. SNYDER, Appellee, v. A. C. WHEELER, Appellant

No. 16,256

Supreme Court of Kansas

January 8, 1910

Decided January, 1910.

Appeal from Butler district court; GRANVILLE P. AIKMAN, judge.

STATEMENT.

THIS action was to quiet title and to cancel a contract purporting to have been made by the plaintiff's agent with the defendant for the exchange of the plaintiff's land in Butler county for land in Gray county, on the ground that the execution thereof was not authorized; also, to cancel a deed purporting to convey the land, on the grounds that it had not been delivered and was without consideration. The answer averred the due execution of the contract and its subsequent ratification; the performance of the agreement by the defendant; the delivery of the deed by the plaintiff; and prayed for judgment for possession. The reply contained a general denial, and pleaded that after the alleged agreement the defendant and the owners of the Gray county land had encumbered it by granting a telephone right of way upon it and had leased the land. It also contained an averment that the defendant had no title to the property.

The contract was dated March 6, 1907. It provided that the defendant should assign to the plaintiff school-land certificates held by him on several tracts of the Gray county land, convey the other tracts (to which patents had been issued by the United States) by warranty deed, and furnish abstracts of title; that the plaintiff should in like manner convey the Butler county land to the defendant and furnish an abstract of title; that the defendant should assume a mortgage of $ 8000 on the Butler county land, and the plaintiff should assume a mortgage of $ 1900 on the Gray county patented land and pay the amount to become due to the state, not exceeding $ 800, on the school land; that the deeds and abstracts should be deposited in a bank at Garden City, each party to examine the abstract of the other by March 25; and that requirements as to the title should be in writing and each party should have a reasonable time to comply therewith, so as to make his abstract show a merchantable title.

The findings of the court were, in substance, that the plaintiff had not authorized the execution of the contract of exchange but had ratified it; that the defendant had assigned the school-land certificates to the plaintiff and deposited them with a deed of the patented land, executed by his wife (and himself, as husband,) and T. A. Edgerton; that the certificates and deed and an abstract of title were deposited in the bank; that the plaintiff also deposited his deed and abstract, as provided in the agreement; that the defendant had no title to the patented land in Gray county, and the title of his wife and T. A. Edgerton, grantors, was not merchantable, and the abstract did not show a merchantable title thereto; that the defendant failed to keep his appointments with the plaintiff and his attorney for the purpose of discussing the title to the land last mentioned and submitting requirements as to such title in accordance with the contract; that by reason of such failure and other acts of the defendant the plaintiff was prevented from having a fair and reasonable opportunity to make such requirements and that the defendant had thereby waived the right to have such requirements submitted in writing; that after so depositing the papers in the bank the defendant exercised ownership over the Gray county land by a grant to a telephone company of the right to construct and maintain a line of telephone and telegraph upon it, with the right to attach the wires of other companies, to trim the trees along the line to erect and set necessary guy and brace poles and anchors and to attach thereto and to trees necessary guy wires, the poles in the line to be set in the highway; that a telephone line had been erected accordingly; that the bank had delivered the plaintiff's deed of the Butler county land to the defendant, but had no authority to do so; and that the defendant does not offer to perfect the title to the Gray county land, or procure the cancellation of the telephone right or show that he is able to do so, or to have the land conveyed by a good title.

The evidence also shows that an agreement with the tenant was made in May, 1907, authorizing him to put in crops, and, if possession was required before maturity of the crops, the defendant was to pay for the time in caring for them, the owner's share to remain on the place. The evidence also is that when the defendant, as stated in the findings, failed to keep his appointment on or about March 23, 1907, to meet the plaintiff, and was informed by the plaintiff's attorney that the trade could not be made, he said that it would make no difference to him whether the trade went through or not, and that he afterward made the agreements with the tenant and with the telephone company.

After receiving the deed to the Butler county land from the bank the defendant returned it, upon the request of the bank. The evidence is conflicting as to the instructions given to the bank when the contract was deposited, but ...