The Missouri v. Pratt
| Decision Date | 11 January 1902 |
| Docket Number | 12,453 |
| Citation | 64 Kan. 118,67 P. 464 |
| Court | Kansas Supreme Court |
| Parties | THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. C. H. PRATT |
Decided January, 1902.
Error from Allen district court; L. STILLWELL, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. LAND CONTEST -- Decision of Land Department Conclusive. The final decision of the department officers of the land department of the general government in a contest case involving the right of the parties thereto to a portion of the public domain is final and conclusive in this court and is not open to collateral attack, and may not be reexamined except in a proper direct proceeding instituted against the successful party.
2. CONTRACT FOR SALE OF LAND -- Subsequent Oral Agreement -- Waiver of Forfeiture. When in a contract for the sale of land the time of making deferred payments is made of the essence of the contract, the parties thereto may orally agree that the time of making the deferred payments specified in the contract may be postponed to await the determination of the right of the vendor to receive title to the land which he agrees to convey; and such oral agreement will constitute a waiver of prompt payment as specified in the contract and estop the vendor from urging a forfeiture of the contract for non-payment by the purchaser at the time specified in the contract during the period of such postponement.
3. CONTRACT FOR SALE OF LAND -- Inability of Vendor to Convey -- Recovery of Taxes Paid. When in a contract for the sale of real estate it is expressly stipulated that the purchaser shall make payment of all taxes and assessments levied against the property, and the purchaser does make such payment in accordance with the terms of the contract, the purchaser may recover taxes so paid from the vendor upon establishing the inability of the vendor to perform his contract and make conveyance of the property.
T. N Sedgwick, for plaintiff in error.
J. B. F. Cates, for defendant in error.
Action brought by C. H. Pratt to recover from the Missouri, Kansas & Texas Railway Company (herein called "the company") payments made upon and money expended under a contract for the purchase of real estate. The facts are agreed upon, and are briefly these:
The company succeeded to the name and all the rights of the Union Pacific Railway Company, Southern Branch, under an act of congress granting aid to said company in the building of a line of railway through the state from Fort Riley to the city of Fort Smith, in the state of Arkansas. The north half of the southwest quarter of section 2 in township 26, and the east half of the northwest quarter of section 34 in township 25, all in range 20, were tracts of land selected by the railway company as part of its land grant. On the 4th day of September, 1884, the company entered into two written contracts of sale of these tracts of land with one Reed, which contracts provide that upon the prompt payment of certain specified amounts, aggregating $ 400 for each of said eighty-acre tracts, the company shall convey by warranty deed an absolute title thereto. Said contracts also provide that time of payment is of the essence of the contract and that the purchaser shall pay all charges, taxes and assessments levied against said lands. Reed duly assigned and transferred all of his interest in these tracts to plaintiff. A portion of the payments provided for in said contracts was promptly made, and taxes upon the land were paid by the purchaser. Thereafter, one Trammel and one Troxell, claiming a prior right to these tracts of land by reason of homestead entry thereon, instituted contests in the local land-office against the company. After the institution of such contests, and in the year 1887 or 1888, the land commissioner and the auditor of the company orally agreed with plaintiff that he need not make further payments to the company upon the contracts until the question of the company's right to the land under its grant should be determined and its title thereto perfected. And, also, that the deferred payments should not bear interest during such time. The contest cases in the local land-office and before the commissioner of the general land-office were decided adversely to the company, and a motion for review of such adverse decisions was denied by the secretary of the interior. Thereafter, the title of the railway company and its right thereto under the grant made by congress of these lands having failed, plaintiff demanded a return of the money paid the company upon the contracts and money expended in making payment of taxes on said lands. This claim being denied, this action was instituted to recover the same and interest. The trial resulted in a judgment for the plaintiff; the company brings error.
It is earnestly contended by counsel for the company that, in the decisions made in the contest cases by the land department of the government denying the right of the company to these tracts of land selected under its...
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