Hartley v. Costa , 40 Kan. 552 ( 1889 )

The opinion of the court was delivered by

YaleNTINE, J.:

It seems to be admitted aud was in effect found by the court below, in finding number 10, that the plaintiffs cause of action, if he ever had any, has not been barred by any statute of limitations. The only question then to be considered is, whether the plaintiff ever had any cause of action. It seems to be contended that the plaintiff never had any cause of action, and this for the reason that the contract between the original parties was not mutual, and that there was such an unreasonable delay on the part of Adam Towler and his successors in interest, including the plaintiff, in procuring the quitclaim deeds mentioned in the contract, that the final procuring of such deeds and the tendering of them to the defendant, and his refusal to then pay the amount agreed to be paid, did not constitute any cause of action. It seems to us that this contention is wholly untenable. Towler sold the entire land to the defendant, and not merely a part of it; he sold it for the sum of $867.50, and not for the half of that sum. He executed a deed for the whole of the land, and not for a part thereof; the deed expressed the entire consideration of $867.50, and not any less sum; the deed was a warranty deed; and, unless the title is made good to the defendant for the whole of the land, Towler and his successors in interest might at any time be subject to an action for a breach of the covenants contained in the deed. Now, might not Towler and his successors in interest discharge themselves from this liability on the covenants of procuring the quitclaim deeds contracted for ? And if they might, then may they not also recover the amount agreed to be paid when such quitclaim deeds should be procured ? Towler put the defendant in the possession of the land at the time the warranty deed was executed, and the defendant has had the quiet and peaceable possession of the property ever since, under and by virtue of his contract with Towler and of the warranty deed from Towler; and yet he has paid only one-half of the consideration for the property, and the other half, which was withheld until the supposed defective title should be cured by the procuring of the quitclaim deeds, has now become due, and this action has been brought to recover the same. The written contract between Towler and the defendant which is set forth in the findings of the court below does not attempt or purport to make time of the essence of the contract. It is true that it speaks of Towler procuring the quitclaim deeds within one year, but it also states that “If said deeds are not obtained then, said note not to be paid until the same are obtained and delivered to the undersigned.” This clearly shows that time was not intended to be of the essence of the contract, and it clearly shows that the procuring of the quitclaim deeds even after the year would come within the contract, and would entitle Towler or his successors in interest to recover the amount agreed to be paid when the deeds were obtained. The mere fact that that part of the contract which was reduced to writing was not in every sense mutual, cannot defeat the plaintiffs action. The written part of the contract was and is in fact only a small portion of the entire contract, the entire transaction. We have stated substantially the entire contract, except that we have not mentioned the mortgage that was given on the land to secure the payment of the bal-anee due on the purchase-price of the land. In one sense a promissory note is not mutual, for the payor thereof could not sue the payee thereon, and yet no one has ever supposed that a promissory note is void for' that reason. And when an owner of stolen property offers to the people of the world in general a reward for the return of the property, and some person innocent of the theft hunts for the stolen property, finds it, and returns the same to the owner in accordance with the owner's offer, and then demands the reward, no person has ever yet supposed that the owner of the property could then sáy that the offer was void because it was not mutual, and refuse to pay the reward because the owner could not at the time he made the offer have sued the person returning the property, or any other innocent person not having the possession of the property, to compel him to return the property. This present case is a much stronger case for the plaintiff than the one supposed. There was ample consideration for the contract in the present case aside from the procuring and the Vvendormayt’ chas”dpiicepul’ tendering of the quitclaim deeds, and the cou-tract was valid, which consideration we have al-ready mentioned. And when the quitclaim deeds were procured and tendered, the plaintiff was entitled to the remainder of the purchase-price of his land. As before stated, time was not of the essence of the contract, and we do not think that Towler or his successors in interest have forfeited their rights under the contract by their delay. Much of their delay is excusable under the circumstances. Towler died, and his successors had to send to England to-obtain the quitclaim deeds. Besides, forfeitures are never favored in law, and they are always odious in equity. And further, the defendant in this case never withdrew his offer or promise to pay the remaining half of the consideration for the land; nor did he at any time complain of any delay in the procuring of the quitclaim deeds. On the contrary, he held the possession of the land as given to him by Towler, the plaintiff’s predecessor in interest, enjoyed the rents, profits and benefits thereof, and permitted the plaintiff and his predecessors to expend their time, labor and money in procuring the quitclaim deeds. It does not appear that he was ever ready or willing to pay the remaining half of the consideration for the land, even if the quitclaim deeds had been procured and tendered to him at an earlier day. He does not seem to have been in any hurry in having the matter closed up; and surely he has lost nothing by the delay. Certainly under the circumstances of this case he has no right to complain.

It is also claimed that the defendant is relieved from fulfilling his contract for the reason that one of the quitclaim deeds was not made directly to the defendant, but was made to John W. Hartley, and that Hartley afterward executed a quitclaim deed to the defendant. Now the contract does not say to whom the quitclaim deeds should be executed, but the substance of the contract is, however, that the defendant should receive in some manner all the title or interest in the land which was owned or claimed by William Hartley and the two brothers of Hartley Bannister. Now quitclaim deeds from the above-mentioned persons, either to Towler or to the defendant, would have accomplished that result; for under the warranty deed from Towler to the defendant all after-acquired titles or interests vesting in Towler would inure to the benefit of the defendant. Also, quitclaim deeds executed in the manner in which the quitclaim deeds in the present case were executed would accomplish the same result. The defendant has, in effect and in substance, received all that he contracted for, and he has now no reason to complain.

The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the plaintiff and against the defendant for the amount claimed, and for the foreclosure of the mortgage.

All the Justices concurring.