Sparks v. Maguire
| Decision Date | 08 June 1946 |
| Docket Number | 36578. |
| Citation | 161 Kan. 529,169 P.2d 826 |
| Parties | SPARKS v. MAGUIRE et al. |
| Court | Kansas Supreme Court |
Appeal from District Court, Sedgwick County; Isaac N. Williams Judge.
Action by Henry J. Sparks against R. T. Maguire and another for the cancellation of defendants' contract to purchase real estate from plaintiff. From a judgment for plaintiff defendants appeal and from an order made after the appeal was taken, vacating such judgment on plaintiff's motion defendants appeal.
Reversed and cause remanded with directions.
Syllabus by the Court.
1. In an action to cancel a contract for the sale of real estate where the tax had not been paid on the contract in question in accordance with G.S.1935, 79-3107, held, it was error to admit the contract in evidence and a judgment based thereon must be reversed.
2. In an action such as that described in the foregoing syllabus, it is held that the admission of such a contract in evidence upon which the tax had not been paid did not render the judgment based thereon void.
Robert R. Hasty, of Wichita, for appellants.
Douglas E. Shay, of Wichita (Harry C. Castor, Justus H. Fugate, and J. Paul Jorgensen, all of Wichita, on the brief), for appellee.
This was an action to cancel a contract for the purchase of real estate. Judgment was for the plaintiff. An appeal was taken. Subsequent to the taking of that appeal the plaintiff filed a motion in district court asking the court to vacate the judgment entered in his favor. This motion was allowed, whereupon the defendants appealed from that order. This appeal was entered under the same docket number as the former appeal. Both were heard together. The facts are about as follows:
The plaintiff filed a petition in which he alleged facts necessary to state a cause of action for cancellation of a contract to purchase real estate. A copy of the contract was attached to the petition. Judgment was asked that defendants pay the amount actually due upon the contract within a reasonable time or that in default of such payment they be barred from any interest in the property; that the plaintiff have his costs and for such other relief as might be equitable.
The contract was for the sale of two lots in Wichita. It bore the date of March 27, 1944, and provided for a purchase price of $4,750, $200 to be paid in cash and $4,550 to be paid in monthly installments of $50 beginning on the first day of April, 1944, and the entire unpaid balance to be paid in full on March 1, 1945, and that when the purchase price had been fully paid the plaintiff was to convey the property to the defendants and the defendants were to pay all taxes and assessments and in case of failure of the defendants to perform the covenants for a period of thirty days the contract should be forfeited at the option of the plaintiff and the plaintiff should have the right to re-enter and take possession of the property.
The defendants answered by way of a general denial except such allegations as were admitted. They admitted the execution of the contract and the payment of the amounts alleged but denied that the copy of the contract attached was a true copy and alleged they were unable to furnish a true copy. The answer further alleged that at the time of the execution of the contract it was difficult to find suitable property in Wichita to rent; that the Office of Price Administration had fixed a rental price of $25 a month upon the property in question; that plaintiff would not rent his property for that price but offered to rent it to defendants for $50 a month provided the defendants would sign a pretended contract of purchase with plaintiff showing payments at the rate of $50 a month, but that any such pretended agreement in writing was not to be signed or delivered as a binding contract but only as an artifice to avoid the rental regulation; that the $200 referred to was never paid and was never intended to be paid; and none of the other terms of the pretended contract were to be enforced by the parties. The defendants disclaimed any rights under the contract and alleged that by reason of their disclaimer and the oral agreement pleaded the court had no jurisdiction to render a judgment concerning the pretended contract, either for the purpose of canceling it or affixing conditions of payment; that defendants pursuant to it took possession of the property on April 1, 1944, and continued to occupy it. The prayer was that plaintiff be denied any relief; that his cause of action be dismissed and for such other and further relief as the court would deem proper.
The reply was a general denial.
The court on November 15, 1945, decreed that defendants should have thirty days from November 15, 1945, to pay what was due on the contract or they should give possession of the premises at the end of the thirty days and should they fail to put the contract in good standing by December 15, 1945, the contract should be canceled.
The defendants filed a motion asking the court to vacate that judgment and to render judgment for the defendants for the reason that the court was without jurisdiction to render judgment for the plaintiff on the evidence offered by him; that his evidence was incompetent and not sufficient upon which to render judgment for the plaintiff and that by reason of the incompetent evidence of the plaintiff, upon which judgment was rendered, the evidence of defendants was undisputed and defendants, therefore, were entitled to have judgment rendered in their favor. They also filed a motion for a new trial because the judgment was in whole or in part contrary to the evidence. All of these motions were denied--hence the first appeal.
Subsequent to the filing of that appeal the plaintiff filed a motion in the trial court asking the court to vacate the judgment it had entered in his favor and in support of the motion pointed out that the court did not have jurisdiction to enter the judgment for the reason that the mortgage registration tax, required by law to be paid on the contract, which was the subject matter of the action, was not paid. The trial court on hearing of this motion found that the mortgage registration tax had not been paid and that by reason thereof the judgment entered on November 15 was void. From this order the defendants appealed.
These two appeals were docketed and heard together.
It will be noted the party who had obtained a judgment later, while an appeal was pending here, went into the same court where the case was tried and the judgment entered, and asked that it be vacated. One might think at first blush that since the defendants had asked in their answer that plaintiff take nothing they would be happy when the court finally set aside the judgment that had been entered against them and would dismiss their appeal. They continued, however, to press it here.
We shall take up the first appeal, laying aside for the moment any thought of the second appeal.
The contract which the plaintiff sought to cancel was introduced in evidence. At the time it was introduced defendants made the objection that it was incompetent, irrelevant and immaterial, no foundation laid and not entitled to admission. The court overruled that objection. There was some testimony then about efforts of the plaintiff to induce defendants to sign an extension of this contract. Then a statement that plaintiff had paid the 1944 taxes and no payment had been made upon the contract after March 1, 1944. Some checks were then admitted with which we are not concerned at this time.
At the conclusion of this evidence the defendants demurred to it on the ground that it failed to show facts sufficient to constitute a cause of action against defendants because no competent evidence had been introduced to support plaintiff's petition. This demurrer was overruled.
Defendants then introduced their evidence to the effect that the written contract had been signed as a means of circumventing the limitation placed by the OPA upon rent that might be charged for the property; that the $200 spoken of in the contract was to be paid at the rate of $50 a month to apply as rent and that the understanding was that defendants were not to be bound by the written contract.
Defendants rely on the provisions of G.S.1935, 79-3107. That section reads as follows: 'Any...
To continue reading
Request your trial
-
McConwell v. FMG of Kansas City, Inc.
...As regards Risjord's misrepresentation of the law during closing arguments, there was no timely objection. See Sparks v. Maguire, 161 Kan. 529, 533, 169 P.2d 826 (1946). Further, the jury was given numerous instructions regarding McConwell's fees which correctly stated the applicable McConw......
- Solorio v. Wilson & Co.
-
Snider v. Marple
...should not have been considered, and therefore that the trial court's judgment must be reversed. In support they cite Sparks v. Maguire, 161 Kan. 529, 169 P.2d 826. In that case the action was to enforce the contract and while that decision is informative, it is not applicable here, for in ......
- Fleeman v. Hudspeth