Sutphen v. Sutphen

• Decision Date: 01 July 1883
• Citation: 30 Kan. 510,2 P. 100
• Parties: W. H. SUTPHEN v. O. H. SUTPHEN
• Court: Kansas Supreme Court

2 P. 100

30 Kan. 510

W. H. SUTPHEN v. O. H. SUTPHEN

Supreme Court of Kansas

July 1, 1883

Error from Dickinson District Court.

ACTION brought by W. H. Sutphen against O. H. Sutphen, to recover $ 450, the unpaid part of the price of eighty acres of land sold and conveyed by plaintiff to defendant. Trial at the October Term, 1882, of the district court, and judgment for defendant. The plaintiff brings the case here. The opinion states the facts.

John H Mahan, and Culbertson & Mead, for plaintiff in error.

Southworth & Moore, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

Plaintiff in error, plaintiff below, brought his action to recover $ 450, the unpaid portion of the price of a tract of eighty acres sold and conveyed by him to defendant. The case was tried before a jury. Verdict and judgment were in favor of defendant, and plaintiff alleges error. As the testimony was conflicting, and as the jury found in favor of defendant, we must assume the facts to be as stated by him. Plaintiff and defendant are father and son. The father had been living on the land, intending to acquire title under the provisions of the United States homestead law. He owed his son $ 200. In the spring of 1879, he, by a parol contract, sold the land to defendant for $ 850--$ 200 being paid in the discharge of the above debt, and the remainder to be paid by the son as soon as he could earn it off the land, over and above what he would need for the support of his family. The son then moved upon the place and commenced farming it. At this time about forty acres were broken. In January, 1880, the father, having perfected his title, conveyed the land by warranty deed to his son, who at that time paid $ 200 cash. Since then he has paid $ 30 more. At the time of conveyance no new arrangement was made between the parties. Nothing was said or done from which any different understanding or agreement could be implied. Evidently the deed was made on the supposition that the original contract was binding, and with the intent to carry it into execution. The number of the members of defendant's family is not shown, nor anything concerning the situation, quality, condition or improvements of the farm, other than the fact that about forty acres were broken.

Plaintiff contends that the original contract was void because in contravention of the homestead law; that the agreement respecting time and terms of payment is also void, because in conflict with the sixth section of the statute of frauds and perjuries, and that the price of the land being admitted, the delivery and acceptance of the deed created an implied promise to pay at once.

Upon this, we remark that doubtless the original contract made before the plaintiff had perfected his title to the land was void. (Mellison v. Allen, ante, p. 382.) But when the deed was made, the father had a right to convey, and he could not disaffirm the conveyance on the ground of any invalidity in the prior contract. And while that prior contract was at the time it was made, illegal and void, such invalidity arose not from any moral taint in the transaction--nothing which made it inherently and essentially vicious, but alone from a temporary inhibition. When that inhibition ceased, there was nothing to prevent the parties from carrying the agreement into effect. And when without further stipulation or new arrangement the father executed a conveyance to the son, the fair interpretation is that it was in execution of that prior contract, that it was a present affirmation of its validity, a new contract so to...