Soper v. Gabe

• Citation: 41 P. 969,55 Kan. 646
• Parties: D. W. SOPER et al. v. WILLIAM H. F. GABE et al
• Decision Date: 05 October 1895
• Court: United States State Supreme Court of Kansas

41 P. 969

55 Kan. 646

D. W. SOPER et al. v. WILLIAM H. F. GABE et al

Supreme Court of Kansas

October 5, 1895

Error from Mitchell District Court.

ON May 21, 1887, William H. F. Gabe and his wife sold 165 acres of land to D. W. Soper and 13 others at the agreed price of $ 14,000. A cash payment of $ 2,800 was made, and the balance which was to bear interest at 8 per cent., was to be paid in installments of $ 2,800 every three months, making the last payment due upon May 21, 1888. The purchasers were to have possession of the land three months after the sale, together with a share of the crops growing thereon. Among other things, the written agreement of the parties stipulated that punctual payment of the installments should be made as they became due, and that the purchasers should seasonably pay all taxes and assessments that might thereafter become due upon the premises. It also contained the following provision:

"In case the second party [the purchasers], his legal representatives or assigns, shall pay the several sums of money aforesaid punctually and at the times above limited and shall strictly and literally perform all and singular the agreements and stipulations aforesaid, after their true tenor and intent, then the first party [the Gabes] will cause to be made and executed unto the said second party, his heirs or assigns, (upon request, at the office of the first party, and the surrender of this contract,) a good and sufficient warranty deed, free and clear of all incumbrances existing against said premises at the date of this contract. And it is hereby agreed and covenanted by the parties hereto that time and punctuality are material and essential ingredients of this contract. And in case the second party shall fail to make payments aforesaid, and each of them, punctually and upon the strict terms and times above limited, and likewise to perform and complete all and each of the agreements and stipulations aforesaid, strictly and literally, without any failure or default, then this contract, so far as it may bind said first party, shall become utterly null and void, and all rights and interests hereby created or then existing in favor of or derived from the second party shall utterly cease and determine, and the right of possession and all equitable and legal interests in the premises hereby contracted shall revert to and revest in the said first party, without any declaration of forfeiture or act of re-entry or any other act by said first party to be performed, and without any right of said second party of reclamation or compensation for moneys paid or services performed, as absolutely, fully and perfectly as if this contract had never been made."

The purchasers failed to make the payments provided for, and on August 6, 1889, the Gabes brought an action against the purchasers for the specific performance of the contract. In their petition they set the contract forth, and allege that $ 3,000 had been paid, together with interest on the balance up to May 22, 1888, and that the remainder of the purchase-money, with interest from the last date, amounting to $ 11,000, was due under and by the terms of the contract. It was further alleged that the purchasers had enjoyed the use and peaceable possession of the premises ever since the making of the contract, and that the plaintiffs were ready and willing to perform their part of the agreement, and to convey the premises upon payment of the remainder of the purchase-money. The prayer of the plaintiffs was for a judgment for specific performance, for the amount due under the contract, and an averment alleging willingness to perform their part of the agreement by the execution of a proper conveyance of the premises. The defendants, who were the purchasers, demurred to the petition upon the ground that it did not state facts sufficient to constitute a cause of action, but the demurrer was overruled. Afterward, the defendants answered. The answer contained: First, a general denial; second, that by reason of the default of the defendants to make the payments agreed upon, the contract had become null and void, and all rights thereunder in favor of either party had ceased and determined; and, third, that the plaintiffs, prior to the bringing of the action, had availed themselves of the right under the contract to accept a forfeiture arising by reason of the default of the defendants, and had, prior to the commencement, of the action, with the consent of the defendants, accepted and taken possession of the land, and retained all of the money paid on the contract, which, it averred, was equal to the real value of the land. A trial was had with a jury, and when the testimony of the plaintiffs was concluded, the defendants demurred to the evidence, but the demurrer was overruled. The jury returned a verdict for the plaintiffs for $ 13,072.70. Upon this verdict, an unconditional judgment for the payment of money was rendered against the defendants for the full amount of the unpaid purchase-money, and no provision was made whatever for securing a title to the land to the defendants, nor that the plaintiffs should execute a deed to the defendants upon the satisfaction of the judgment, or at any other time. The defendants complain of the rulings made and bring the case here for review.

Judgment reversed and cause remanded.

J. D McFarland, for plaintiffs in error.

A....