Southern v. Linville

Decision Date09 June 1934
Docket Number31861.
Citation139 Kan. 850,33 P.2d 123
PartiesSOUTHERN v. LINVILLE et al. [*]
CourtKansas Supreme Court

Syllabus by the Court.

When purchaser executed two notes which, with deed from vendor were placed in escrow, the deed to be delivered on payment of notes, and purchaser defaulted on second note and told vendor that he was unable to carry out contract but vendor did not offer to cancel contract or release purchaser, purchaser subsequently tending payment of note held entitled to deed vendor not having accepted the proposed abandonment of the purchaser.

Homestead right attached to land occupied by purchaser and wife as home where part of purchaser price was paid in cash notwithstanding deed was placed in escrow pending further payments and purchaser's suggested abandonment of purchase contract without wife's consent was void as against homestead claim.

Purchaser on tender of compliance with purchaser contract is entitled to specific performance.

1. A married man with a family purchased and entered into possession of a farm agreeing to pay therefor $11,700, paying $2,000 in cash at time of sale in 1928, and giving two notes one for $1,000, due later in 1928, which was paid, and one for $1,200 payable August 1, 1929, and he assumed two mortgages on the land, one for $4,000 and another for $3,500. The contract, notes, and the deed from the seller were placed in escrow with a bank, the deed to be delivered to the buyer when the notes were paid. The $1,000 note was paid, but, on account of the depression, the $1,200 note was not paid when due, but the buyer paid $990 on one mortgage and $840 on the other one. He paid taxes on the land to the amount of $470 and made improvements on the farm buildings, all payments together made by the buyer was $5,300. During the depression, the buyer became discouraged and said to several persons that he was unable to carry out the contract and would give up the effort, and also made the same statements to the seller, but the latter did not offer to cancel the contract nor surrender the note to the buyer nor release him from its payment. He did not ask the buyer for the possession of the land, and the contract of sale contained no provisions for its forfeiture. Later, in 1933, oil was discovered in the vicinity and the land then became worth $24,000. Then the buyer arranged for the payment of the $1,200 note and tendered the amount of the same to the seller which was refused. The buyer then brought an action for specific performance of the contract, and, under the evidence and findings, it is held that the seller did not accept the proposed abandonment of the buyer nor release him from the obligations undertaken in the contract, and that he is entitled to the deed on the tender of the payment of the $1,200 note.

2. A homestead right attached to the transfer of the land purchased and occupied by the buyer and his wife as a residence for years, and the suggested abandonment of the husband to which the wife gave no consent, is absolutely void, as against the claim of homestead.

3. The buyer, upon tender of compliance with the contract of purchase, is entitled to specific performance of the purchase.

Appeal from District Court, Rice County; Ray H. Beals, Judge.

Action by J. W. Southern against W. B. Linville and others. From an adverse judgment, plaintiff appeals.

Judgment reversed, with directions.

William Osmond, Elric C. Cole, and T. B. Kelley, all of Great Bend, and Walter F. Jones, C. E. Chalfant, and J. Richards Hunter, all of Hutchinson, for appellant.

Ben Jones, of Lyons, for appellees.

JOHNSTON Chief Justice.

This was an action for specific performance of a contract relating to the sale of a quarter section of land, brought by J. W. Southern against W. B. Linville and his wife, and the Farmers' State Bank of Chase, Kan. The contract on which the claim is based provided that the plaintiff should pay $2,000 down on the transaction, that two notes should be executed by Southern, one for the payment of $1,000 on September 1, 1928, a second note for $1,200 should be paid on or before August 1, 1929, and that plaintiff should assume the payment of the Fontron loan of $4,000, and a second one of $3,500 belonging to J. B. Goldman. These papers were deposited in escrow with the Farmers' State Bank of Chase on April 19, 1928.

It was found upon evidence that Southern paid the $2,000 at the time of the sale, and the $1,000 note due on September 1, 1928, but that he failed to pay the $1,200 note due August 1, 1929, and has made no payment since the 1st of September, 1931. Interest payments were made on the Fontron loan, but no part of the principal, and on October 29, 1932, that mortgage was foreclosed. Southern was a party to the action but did not appear nor defend, and judgment of foreclosure was taken on December 23, 1932, in which it was adjudged that he be forever barred, etc.

In pursuance of that decree the property was sold by the sheriff on February 7, 1933, to the National Life Insurance Company, which was a successor to the Fontron Loan Company, and that sale was approved by the court. The indebtedness due to Goldman, which was assumed by Southern, was found to be a valid and existing indebtedness of Linville and his wife. The court found that Southern had informed Linville that he could not and would not pay said indebtedness so assumed by him, and that he no longer claimed any interest in this land under their contract.

It was found that he refused and failed to pay taxes on the property for 1932, and that such taxes were paid by the Life Insurance Company. It was found that plaintiff has not paid the note of $1,200 due on or before August 1, 1929; that he has made no claim to any oil or gas leases or rental due to the owner of the real estate on account of oil and gas mining leases, but instructed the depositary, Farmers' State Bank of Chase, to pay the same to the defendant Linville. There was a finding too that in the wheat allotment transaction of 1933, Southern, under oath, asserted that he was the tenant and that the defendant W. B. Linville was the owner of the quarter section.

The court finds that since the making and execution of the contract, the land has increased in value and that the reasonable market value of it at the time of the trial was approximately $24,000. The court ordered and adjudged that plaintiff had failed, refused, and neglected to perform or carry out the contract of April 19, 1928, according to its terms; that he had failed to make proper tender into the court of the payment of the sums assumed to be paid prior to the bringing of this action or at the hearing of this action; that Southern had abandoned the contract and any right he might have had thereunder and was a tenant of the real estate of Linville, the owner thereof; and he is not entitled to any rentals of oil or gas leases, and is not entitled to credit for the delay money rentals in the sum of $160; and that he was not entitled to specific performance of the contract. Motion for a new trial and to set aside the findings of the court were overruled by the court.

The principal point made on the part of plaintiff was that Linville, the grantor, had not accepted plaintiff's abandonment and repudiation of the contract; that it was an essential element of Linville's defense that he release the plaintiff from his liability as a debtor of defendant, and a failure to prove consent of plaintiff's wife to the abandonment and repudiation of the real estate contract affecting her homestead.

Error admitting evidence and excluding other evidence is a matter of complaint. That the court had no authority to quiet the title of the defendant W. B. Linville in an action for specific performance, and the answer of defendant Linville contained no prayer asking to have his title quieted.

Southern and his family went into possession of the premises on August 1, 1928, and they have been living there ever since that time. When the $1,200 note became due August 1, 1929, the depression rendered him unable to pay the note; that he paid taxes and made payments on the two mortgages which he assumed, but after September 1, 1931, no payments of any kind on account of the contract were made. When Southern came into court in this case, he tendered payment of the $1,200 note, and asks for performance, but at that time the mortgage to Fontron had been foreclosed, and the sale had been made, taxes had been paid by the purchaser, the National Life Insurance Company. In January, 1934, Southern tendered to Linville payment of the $1,200 note and demanded the deed which the bank held in escrow.

It is true that the plaintiff was in default on the $1,200 note payable on August 1, 1929, and that the indebtedness assumed had not been paid. He had paid Linville $3,000 in 1928, had been put in possession of the land and with his family had occupied the farm since as their homestead. In his testimony he said that he had made interest payments on the Fontron loan which had been assumed, in 1928, $110; in 1929, $220; in 1930, $220; in 1931, $220; and in 1932, $220, amounting in all to $990. Interest on the Goldman...

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10 cases
  • Ford v. Guarantee Abstract & Title Co., Inc.
    • United States
    • Kansas Supreme Court
    • July 23, 1976
    ...v. Clark, 58 Kan. 100, 48 P. 563; Gault v. Hurd, 103 Kan. 51, 172 P. 1011; Smith v. Griffith, 105 Kan. 357, 184 P. 725; Southern v. Linville, 139 Kan. 850, 33 P.2d 123; and Southern v. Chase State Bank, 144 Kan. 472, 477, 61 P.2d 1340, 107 A.L.R. 944; and see Moe v. Transamerica Title Ins. ......
  • Cole v. Coons
    • United States
    • Kansas Supreme Court
    • April 5, 1947
    ... ... property. It may be an equitable title ( Moore v ... Reaves, 15 Kan. 150) or an executory contract to ... purchase ( Southern v. Linville, 139 Kan. 850, 857, ... 33 P.2d 123), ... [178 P.2d 1005] ... or an estate for a term of years ( Hogan v. Manners, ... 23 Kan ... ...
  • Steinkirchner v. Linscheid
    • United States
    • Kansas Supreme Court
    • January 24, 1948
    ... ... incompetent [164 Kan. 183] husband without his consent ... Abandonment is a species of alienation. Southern v ... Linville, 139 Kan. 850, 33 P.2d 123. Section 9 of ... Article 15 of the constitution of Kansas reads, in part, as ... follows: 'A ... ...
  • In re Kester
    • United States
    • U.S. Bankruptcy Appellate Panel, Tenth Circuit
    • March 13, 2006
    ...Court determined that an equitable interest in real property is sufficient to claim a homestead interest.18 Three of those cases, Southern v. Linville, Walz v. Keller, and Moore v. Reaves, held that a contract for the sale of land gave the purchaser an equitable interest in the land, and th......
  • Request a trial to view additional results
1 books & journal articles
  • Kansas Homestead Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 65-04, April 1996
    • Invalid date
    ...homestead interest in oral leasehold estate). [FN127]. In re Estate of Dahn, 204 Kan. 535, 464 P.2d 238 (1970); Southern v. Linville, 139 Kan. 850, 33 P.2d 123 (1934); Walz v. Keller, 102 Kan. 124, 169 P. 196 (1917); Stowell v. Kerr, 72 Kan. 330, 83 P. 827 (1905); Moore v. Reaves, 15 Kan. 1......

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