Witt v. Boothe, 20,204

• Court: United States State Supreme Court of Kansas
• Writing for the Court: MARSHALL, J.
• Citation: 98 Kan. 554,158 P. 851
• Parties: H. M. WITT, Appellee, v. EDWARD D. BOOTHE, Appellant
• Decision Date: 08 July 1916
• Docket Number: 20,204

158 P. 851

98 Kan. 554

H. M. WITT, Appellee,
v.
EDWARD D. BOOTHE, Appellant

No. 20,204

Supreme Court of Kansas

July 8, 1916

Decided, July, 1916.

Appeal from Johnson district court; JABEZ O. RANKIN, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. VENDOR AND PURCHASER--Purchase of Real Property--Oral Contract Partly Performed--Statute of Frauds no Defense. A purchaser of real property under an oral contract, who pays a part of the purchase price, takes possession of the property under the contract, and retains possession until the commencement of an action against him for the recovery of the balance of the purchase price, can not defeat that action by setting up the statute of frauds.

2. SAME--Warranty Deed--Balance on Previous Contract--Recovery. The purchaser of a tract of land who obtains a deed therefor is entitled to receive the unpaid purchase money outstanding on a previous contract for the sale of the land by the grantor in the deed to a third person.

3. JUDGMENTS--Personal--Wife Not a Party--Homestead. A personal judgment may be rendered in an action against a defendant whose wife is not a party, although the claim on which the judgment is rendered is one against which there is no homestead exemption.

4. PLEADINGS -- Petition -- Failure to Allege Tender of Deed -- Defect Cured by Judgment. A defect in a petition in not alleging a tender of a deed is cured by judgment requiring the plaintiff to deposit a deed before judgment is rendered.

5. APPEAL AND ERROR--Installment Notes--Judgment on Installments Not Due--Error. It is error to render judgment for the entire unpaid purchase price of real property payable in installments, when only a part of the installments are due and there is nothing in the contract of sale accelerating future payments.

I. O. Pickering, of Olathe, for the appellant.

S. D. Scott, of Olathe, and M. J. Burke, of Kansas City, Mo., for the appellee.

OPINION [158 P. 852]

MARSHALL, J.

The plaintiff recovered judgment for the balance of the purchase price for the sale of real property. The defendant appeals.

The petition alleges that in March, 1910, Adam Dailey verbally [98 Kan. 555] agreed to sell and convey to the defendant certain real property for the sum of $ 1250, to be paid $ 20 each month for eight months and thereafter $ 10 per month, with interest, until the full sum was paid; that about the time of making the contract the defendant took possession of the property; that he paid $ 450 on the principal and $ 178.65 as interest; that default had been made in the monthly payments since April, 1913; that thereby the whole sum remaining unpaid, $ 800, became due and payable; that in 1913 Adam Dailey conveyed the property by warranty deed to the plaintiff, who brings the action to recover the $ 800 due on the contract. Attached to the petition is an alleged copy of a written contract between Adam Dailey and the defendant for the sale of the lot by Dailey to the defendant for the sum of $ 1250 with conditions providing that on default by Boothe in making payment, in paying taxes and insurance, possession of the property and the amount paid should be forfeited; and for the acceleration of payments in default at the option of Dailey; and providing that on full payment Dailey would convey the property to Boothe by good and sufficient deed of general warranty. This contract was not dated, and was not signed by either Dailey or Boothe. There was no allegation in the petition of any offer or tender of a deed by either the plaintiff or Adam Dailey to the defendant, on payment of the balance of the money.

The defendant demurred to the petition on the ground that the plaintiff was not a party in interest and had no capacity to sue; that the action was brought to charge the defendant upon an agreement for the sale of real estate which was not in writing nor signed by the party so charged; that the action was upon a verbal contract which was not to be performed within one year from the making thereof; and that the petition of the plaintiff did not state facts sufficient to constitute a cause of action. The demurrer was overruled.

On the trial Adam Dailey testified in substance as follows:

"I know the defendant, Boothe; had a business transaction with him in March, 1910; I sold him the lot in Westport Annex, this county, for $ 1250; a written contract was afterwards prepared by my niece who took it over for Mr. Boothe to sign; he did not sign it. After I sold him this property Boothe took possession I think in March, 1910, it was about a week after the sale. Boothe continued to make payments on the property for about three years; he paid $ 460. Sometimes he got behind and [98 Kan. 556] sometimes he paid up. He paid $ 20 per month for the first eight months, after which he was to pay $ 10 per month. I sold my equity in the place to Mr. Witt the 27th or 28th of June, 1913. There were three months' payments due when I sold to Mr. Witt. Witt went down to look at the house before he bought it and I told Boothe I had sold it to Witt. I told him to make his payments to Witt; he said, 'I don't owe Witt anything.'"

It does not appear when the written contract was prepared. It was presented to...