Walz v. Keller

Decision Date08 December 1917
Docket Number21,135
Citation169 P. 196,102 Kan. 124
PartiesJ. F. WALZ, Appellant, v. PETER KELLER et al., Appellees
CourtKansas Supreme Court

Decided July, 1917.

Appeal from Trego district court; JACOB C. RUPPENTHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HOMESTEAD -- Lease and Contract Not Signed by Wife -- Absolutely Void. A homestead right attaches to land obtained under a contract of purchase where the purchaser and his wife occupy the land as a residence, and a new contract modifying the contract of purchase and stipulating for a surrender of possession in certain events, and also a contract of lease executed between the purchaser and the seller, none of which were signed by the wife and to which she gave no consent, are absolutely void.

2. SAME--Defense to Action on Void Contracts. Although the homestead may be sold for the payment of obligations contracted for its purchase, the purchaser and his wife are not precluded from defending the homestead right as against actions brought by the seller for rent and forcible detainer based on the void contracts above mentioned.

Ira E Lloyd, and N. F. Nourse, both of Ellsworth, for the appellant.

A. D. Gilkeson, of Hays City, for the appellees.

OPINION

JOHNSTON, C. J.:

J. F. Walz brought an action against Peter Keller to recover rent due upon a farm lease. Keller's wife and two mortgagees of the crop were also made defendants. Walz also secured a judgment in the justice of the peace court in a forcible detainer action for possession of the farm. The latter action being appealed to the district court, the two actions were there consolidated and tried as one. Plaintiff appeals from the judgment in defendant's favor.

In 1908, defendant had entered into a contract with Mary L. Burpee by the terms of which she agreed to sell the land in question, situated in Trego county, to him for $ 2,700. He occupied it until January 24, 1911, when he was in default to the extent of about $ 900, having paid $ 700 on the purchase price. He and his brothers then entered into a contract with plaintiff by which the latter was to sell them certain land in Gove county for $ 30,000 and, as part of the consideration therefor, defendant (his wife joining with him) assigned to plaintiff his interest in the Burpee contract.

On April 1, 1914, defendant and his brothers being in default about $ 4,500 on the Gove county land, plaintiff and defendant then adjusted matters between them by releasing each other from all liability on the Gove county contract, and entering into another contract in which defendant agreed to purchase the Trego county land from the plaintiff for $ 2,265, payable in seven annual installments of $ 325 each, commencing October 1, 1914, with interest at six per cent. Strict compliance with its terms as to the times of making payments was made a condition of the agreement. The defendant and his wife and children have occupied the land as a homestead since May, 1914. On October 1, 1914, defendant failed to make the payment then due and notice to quit the premises was served upon him by plaintiff. Defendant asked for further time, and on October 2, 1914, they entered into another written agreement under which the contract of purchase made April 1, 1914, was surrendered to plaintiff, and it was provided that it might be redeemed on the following conditions:

"If the second party shall on October 1st, 1914, or on October 1st, 1915, make payment in full to the said party of the first part of all principal payments due at the time of such payment on contract for sale above mentioned, dated April 1st, 1914, then the said first party agrees to renew the said contract of sale or execute a new one under like terms and conditions."

It was further provided that the defendant should pay, not later than October 30, 1914, the sum of $ 67.95 as interest due under the contract of purchase, and that a failure to make such payment in time should render the new contract null and void. At the time this agreement was made the lease on the land was executed. The interest payment of $ 67.95 was not made by defendant, and on November 3, 1914 plaintiff sent defendant a letter chiding him for failing to pay the interest and declaring that he considered the contract of October 2, as well as the contract of purchase mentioned therein, to be void. The action for rent was commenced August 13, 1915, and the forcible detainer action was begun on September 7, 1915. No payments were...

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8 cases
  • Postlethwaite v. McCabe
    • United States
    • Kansas Supreme Court
    • 9 Marzo 1918
    ... ... Rodgers, 97 Kan. 438, 155 P ... 961; Fredenhagen v. Nichols & Shepard Co., 99 ... Kan. 113, 160, 160 P. 997 P. [102 Kan. 624] 997; and Walz ... v. Keller, 102 Kan. 124, 169 P. 196, all involved ... controversies between homestead claimants and general ... creditors, and no distinction ... ...
  • Redmond v. Kester
    • United States
    • Kansas Supreme Court
    • 8 Junio 2007
    ...P.2d 370 (1937) (refusing to enforce lease on real estate claimed as homestead because wife had not consented to lease); Walz v. Keller, 102 Kan. 124, 169 P. 196 (1917) (upholding homestead right to land held under contract for purchase); Stowell v. Kerr, 72 Kan. at 332, 83 P. 827 (protecti......
  • In re Kester
    • United States
    • U.S. Bankruptcy Appellate Panel, Tenth Circuit
    • 13 Marzo 2006
    ...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 that the homestead ......
  • In re Kester, Bankruptcy No. 02-24689.
    • United States
    • U.S. Bankruptcy Court — District of Kansas
    • 16 Septiembre 2005
    ...139 Kan. 850, 33 P.2d 123 (1934) (concluding equitable estate in the land sufficient to claim homestead interest); Walz v. Keller, 102 Kan. 124, 169 P. 196 (1917) (stating "A homestead right attaches to an equitable interest as well as to a fee-simple title."); Stowell v. Kerr, 72 Kan. 330,......
  • 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
    ...[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. 150 (1875); Tarrant v. Swain, 15 Kan. 146 (1875......

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