*

*

*

"Plaintiff further alleges that he has duly performed all the conditions of said written contract on his part to be performed, except in so far as he has been prevented from delivery of said deed and abstracts so tendered to the said defendant by the defendant's refusal to accept the same. * * *

Linscott gave me abstracts to the Oklahoma | aforesaid amended and corrected, and which lands, I took them home, and after looking abstracts showed title perfect to each tract them over returned them to him and told him vested in plaintiff. there were some irregularities that he would have to fix up; that I was no lawyer, and I would have to submit them to a lawyer, but until these irregularities were fixed up there would be no use of my hiring an attorney to go over the abstracts. I made note of the irregularities I had discovered on a slip of paper, which I handed to Linscott. We talked about the oil lease. I told him I did not think they made a perfect title. He said he had them examined by a lawyer, and the abstracts had been pronounced good. I told him that when the irregularities I had pointed out were straightened out I would submit the abstracts to an attorney to see whether there was a perfect title or not. He said he was going to give me a perfect title."

The plaintiff gives a different account of the conversation.

"Plaintiff further alleges that he is still able and willing to deliver the said deed and abstracts so tendered by him to the said defendant, and thereby vest in the said defendant a perfect title to said premises therein whenever the defendant will accept the same; and plaintiff brings said deed and abstracts into court for delivery to the defendant in accordance with such order or judgment of the court as may be made or rendered therein."

The value of the Holton property was al

sum and the agreed difference in value between the two properties, $250, making $4,750 in all, with interest from the date of the tender. A prayer for general equitable relief was added.

The plaintiff then proceeded to try to per-leged to be $4,500. The prayer was for this fect his title. In doing so he intended to include in his abstracts all matters necessary to appear in order to show perfect title in him, did not omit to have anything appear on the abstracts by reason of anything appellant said or did, and believed he had included in the abstracts all matters necessary to appear in order to show a perfect title in him. The affidavit of one E. W. Miller was procured and attached to the abstracts, stating that the oil and gas leases were void because of noncompliance with their terms; no work ever having been done under them.

In the latter part of June or the first part of July, the defendant notified the plaintiff that he did not believe the title to the Oklahoma land was good, and that the deal was off. On August 28th the plaintiff made tender of his abstracts and of a deed, which the defendant declined to receive. The plaintiff then sued for the value of the Holton property and the cash difference between the trading prices of that and the Oklahoma land.

The petition contained, among others, the following allegations:

"Plaintiff further alleges that the said plaintiff, pursuant to the terms of said written contract, duly furnished to the defendant abstracts of title to the said two tracts of land situate in Pottawatomie county, Okl., mentioned and described in said written contract, and that upon the furnishing of said abstracts of title to the said tracts of land situate in Pottawatomie county, Okl., the defendant objected to the sufficiency thereof and required certain affidavits to be obtained, showing identity of parties through whom the title had passed, and also required the affixing of proper revenue stamp to one of the deeds included in the chain of title to said premises, all of which requirements were duly complied with by said plaintiff, and the plaintiff thereupon again tendered to the said defendant the abstracts of title so as 114 P.-69

On the trial the court instructed the jury, in substance, that, if the defendant returned the abstracts to the Oklahoma lands with written requirements, if the plaintiff met those requirements, and if the defendant made no requirements, except those specified in writing, such facts afforded sufficient proof that the contract to furnish abstracts showing perfect title had been fulfilled. The court also instructed the jury that the measure of the plaintiff's damages was $4,250, with interest from the time of tender. A verdict was returned for the plaintiff in the sum of $4,560.47, and judgment was entered accordingly. The plaintiff brought his abstracts and deed into court for delivery according to the order of the court, but no order of any kind was made. The defendant appeals.

H. F. Graham and Garver & Garver, for appellant. Crane & Woodburn Bros. and Charles Hayden, for appellee.

BURCH, J. (after stating the facts as above). [1] The plaintiff takes the position that he is a vendor of land suing for reparation on account of the refusal of the vendee to comply with the contract. The contract is wholly executory, and no claim is made that the vendee is unable to perform. In such cases the vendor is entitled to redress in one of two ways. He may have his contract enforced according to its terms and receive whatever he has contracted for, or he may have damages for the loss of his bargain. If he has sold for cash, he may have the purchase money. In such a case he must allege tender and willingness and ability to perform on his side, so that the action becomes in all essential respects one

to compel the vendee specifically to perform. used in connection with abstracts of title See Lumber Co. v. Town Co., 51 Kan. 394, are stated by Warvelle as follows: "There 32 Pac. 1100. If he has agreed to take is, however, another class of affidavits that other real estate, he may compel the vendee are resorted to by conveyances under a to convey it to him. But if the contract be choice of difficulties, and which frequently one for the exchange of lands, neither the figure on the records and in the abstract. vendor nor the court has any authority to These are the ex parte sworn statements of substitute for it, in legal effect, a contract | individuals respecting some question raised to sell for cash, by giving the vendor the by the instruments, usually relating to value of the land, instead of the land it- deaths, marriages, births, etc., concerning self. He must either take the land, or take which no other or better evidence can be whatever damage he has sustained. In the found. Family records are not universal; latter case the measure of damages is the nor even where, as is the custom of many of difference in value between what he was to the states, a record of births, deaths, and receive and what he was to give. marriages is kept by proper officers can the requisite information be always obtained. When such is the case, resort must be had to the next best and most available testimony, which is usually supplied by the affidavit of some person, setting forth his knowledge of the matters under inquiry. Such an instrument, it is true, possesses no legal validity, and not being made under the sanction of a court, or in any legal proceeding, is not strictly evidence for any purpose, yet, being usually all that can be adduced, it has been, as it were, by common consent of the profession, adopted as evidence in the examination of titles, and the testimony taken as corroborative evidence of general reputation, concurrent possession," etc. Warvelle on Abstracts, 369.

"Where to parties enter into a contract for the exchange of land and the payment of money, and afterward one of them without sufficient reason refuses to perform on his part, and the property which he was to give is of greater value than the property which he was to receive, and the other party sues him for damages, held, that the measure of damages is the difference in value between the property which the plaintiff was to receive and that which he was to give in consideration therefor." Bierer v. Fretz, 32 Kan. 329, 4 Pac. 284, syllabus.

What the remedies of a vendor may be under circumstances other than those here presented need not be discussed. The instruction given the jury relating to the measure of damages, and upon which the verdict rests, was erroneous.

[2] Ordinarily a vendee should make all his objections to the title disclosed by the abstract furnished him when he returns it with his requirements; but the law does not put him into a straight jacket and absolutely forbid him to take any other course, irrespective of the attitude of the vendor. the defendant's testimony be true (and that was a matter for the jury), when he returned the abstracts with certain written requirements he verbally questioned the title because of the oil and gas leases, and reserved the right to satisfy himself at a later time regarding them. The plaintiff made no complaint of the proposed course of conduct, but said he was going to give a perfect title, and proceeded to make preparation accordingly, uninfluenced by what the defendant said and did. In virtually withdrawing this evidence from the jury, and binding the defendant by the arbitary rule stated in the instructions, the court erred. Since the judgment must be reversed, the question arises as to what the direction to the trial court shall be.

[6] Except in cases of the kind indicated, a vendee cannot be compelled to accept a title depending for its validity upon parol evidence which he may not be able to command when needed. "It has been frequently held that if parol evidence should be necessary to remove any doubt as to the validity and sufficiency of the vendor's title, the purIf chaser cannot be compelled to complete the contract. He cannot be required to take a doubtful title which he must fortify, if impugned, by resorting to evidence perishable in its nature, and possibly unavailable to him when the necessity for it occurs. It must be observed, however, that a title is not necessarily doubtful simply because it requires to be supported by parol testimony. As a general rule, for example, title by inheritance depends principally upon matters in pais, or facts resting in the knowledge of witnesses. If those facts be clearly sufficient to establish the right of the vendor as heir, it is apprehended that the purchaser could not object to the title simply because it could not be established by record evidence. But a different case is presented where the fact of inheritance itself is in doubt. There may be circumstances to show that the an cestor is not dead, or that he has left a will, or that the vendor is not sole heir. Then it is that the title becomes unmarketable from the necessity of parol proof to remove the doubts which surround it." Maupin, Marketable Title to Real Estate, § 289, p. 692.

[4, 5] The oil and gas leases constitute a cloud on the plaintiff's title. The affidavit attached to the abstract does not remove this cloud from the record. Who Miller is or where he resides does not appear, and he might not be available as a witness for the defendant if the latter were obliged to resist a claim made under the leases. Some of

trying to "mend his hold" by objections to the title not specified in the written require ments, and that he is estopped from so doing upon well-known principles illustrated in numerous decisions. The difficulty with this position is that certain indispensable elements of estoppel are wanting. The defendant's conduct was not relied on; the plaintiff did not change his own situation because of it; and he has suffered nothing in consequence of it. He did not even incur the expense of this litigation upon the strength of it. No estoppel is pleaded as a ground of recovery. Although the petition refers to the making of the written require ments it does not declare that the plaintiff regarded those requirements as final, and shaped his course accordingly. On the other hand, the theory of the petition is that the plaintiff has a perfect title, that he made his abstracts show a perfect title, that his deed will convey a perfect title, and that the fault of the defendant lies in not accepting and paying for a perfect title according to his contract so to do. Under these circumstances the plaintiff is the one who is really try ing to mend his hold, and this for the purpose of obtaining full compensation for what is in fact a clouded title.

[3] The court desires to say here that the equities in favor of a vendor must be very strong before it will compel a vendee to take or pay for an unmarketable title under a contract for a perfect title. The plaintiff in the present case does not want damages for the loss of his bargain. In effect he seeks specific performance of the contract, and should he recover the defendant will be forced to accept a clouded title. In such cases the course pursued by Lord Chief Baron Alexander, in the case of Warren v. Richardson, Younge's Reports (Court of Exchequer in Equity) page 1, appears to be just. The suit was brought to compel a lessee to accept a lease. By his conduct he had waived the right to object to the lessor's title, and specific performance was decreed. On reference to a master to settle the terms of the lease, it was discovered that the lessor could not make title. The opinion reads:

Cir

ascertained to be defective. It would be contrary to all the rules which prevail upon the subject of specific performance. The principles upon which courts of equity have proceeded on the subject of specific performance do not make a decree for a specific performance the necessary consequence, under all circumstances of an agreement. cumstances of hardship often prevent it. They recollect that the party is not without remedy, for, though he should be refused a specific performance, he has left to him his action upon the agreement. What creates the difficulty in this case is that the conduct of the party had barred his right to the usual investigation into the title; and this defect is a defect of title. If the objection had been to the conveyance merely, the defendant would have had the full benefit of it without any doubt. But the objection is of another description. It is an objection to the title. It stands decided upon this record that the defendant had waived his right to call upon the plaintiff for the production of his title; on the other hand, it is clear that the plaintiff can make no good title, and if the defendant took it, it would be defective.

"I have somewhat hesitated as to the fit course to be pursued under these circumstances. As I have stated, I have not met with any authority exactly in point to conduct me. I think that the most just course, and the best supported by the rules prevailing on this subject of specific performance, and which is sustained by the greatest variety of analogies, is, in consequence of its appearing that the plaintiff cannot make the defendant a good title, to refuse a decree for a specific performance. A waiver of the defendant's right to make the plaintiff produce his title does not seem necessarily to import that he will accept the title, though it should manifestly appear to be bad. I am of the opinion, therefore, that I ought not to decree the execution of the lease settled by the master, or any other lease, but that the bill should be dismissed."

The dispute regarding the sufficiency of the plaintiff's title is one of law only. The facts which defeat the plaintiff's claim of estoppel were found specially by the jury. It is almost three years since the contract was made. Considerable time would be required to perfect the plaintiff's title if he seemed

"This is a suit for a specific performance. The court was of opinion that the defendant had waived what he would otherwise most clearly have had a right to, an inquiry into the plaintiff's title that is, into his power to make a valid lease according to his agree- | inclined to do so, and it is not probable that ment; in other words, to put upon the plaintiff the burden of showing his title, and proving it to be a safe one. Though the court thought the defendant had by his conduct waived that right, it has now come out collaterally, but I think clearly, that the plaintiff cannot make a title according to his contract. It would be a great hardship upon a party to force him to accept a title which is

the contract would then represent to either party anything like what it did when they engaged themselves. Therefore the court has concluded to leave each one in the possession of what he has.

The judgment of the district court is reversed, and the cause is remanded, with direction to enter judgment for the defendant. All the Justices concurring.

(84 Kan. 596)

DYSON v. BUX et al.

"which includes said lot and one-half of the north and south walls of building occupying

(Supreme Court of Kansas. April 8, 1911.) said lot." That afterwards a deed was exe

(Syllabus by the Court.)

1. FRAUD (§ 43*) — ACTIONS-SUFFICIENCY OF PETITION.

D. owned lot 61 upon which up to the north line was the wall of a building. The petition alleged that he contracted orally to sell one-half of this wall to Bauerlein, but before the latter took it D. sold the lot to Bux and Stadel, telling them that it carried but one half the north wall, as he had agreed to sell the other half to Bauerlein. That D. made a written contract to sell lot 61 to Bux and Stadel to include one-half of the wall. That subsequently he executed a deed to them, conveying lot 61 "and the improvements thereon, which consists of one-half (2) each of the north and south walls of building designated as street number two hundred and twenty-five (225)." The petition further alleged that Bauerlein and Bux and Stadel conspired and colluded together for the purpose of cheating and defrauding D. out of the one half of the wall, Bauerlein refusing to carry out his agreement to purchase of D., and with the consent of Bux and Stadel appropriating the half of the wall to his own use. Held, that a cause of action was stated, and that a demurrer to the petition was erroneously sustained.

[Ed. Note. For other cases, see Fraud, Dec.

Dig. § 43.*]

2. DEEDS (§ 97*)-Construction.

The ancient rule that the habendum clause in a deed controls a later exception therein has lost much of its former force and inflexibility. A deed, like any other contract, should be construed by considering all its language, with a view to ascertaining the intention of the gran

tor.

[Ed. Note. For other cases, see Deeds, Cent. Dig. 270; Dec. Dig. § 97.*]

Appeal from District Court, Shawnee County.

Action by C. Dyson against B. F. Bux and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

W. R. Hazen, for appellant. Edwin D. McKeever and Hazen & Gaw, for appellees.

cuted to Bux and Stadel, describing the property conveyed as "Lot sixty-one (61) on Kansas avenue and improvements thereon which consists of one-half each of the north and south walls of said building." That afterwards Bauerlein, who owned the adjoining lot on the north, conspired and colluded with Bux and Stadel to cheat and defraud the appellant out of the north half of the wall, and proceeded to erect a building, using such half of the wall as a party wall. That no attention was paid to a notice from the appellant of his rights in the wall, and forbidding the appellees to use the same. A demurrer to the petition was sustained apparently on the theory that the deed conveyed the lot and did not reserve any portion of the wall, and that the previous negotiations and contract were superseded by the deed.

The appellant complains of this ruling and insists that the language of the deed was at least ambiguous, and was susceptible of

proof as to its meaning, and that it was not

accepted as a performance of the conditions of the preceding contract, and hence was not an absorption thereof.

The appellees contend that the contract was merged in the deed, and that Hampe v. Higgins, 74 Kan. 296, 85 Pac. 1019, is controlling. It is said in their brief that the appellees bought lot 61 and had a right to believe that they were purchasing everything upon it, and numerous authorities are cited in support of the proposition that reservations and exceptions in a deed must be in clear and definite language.

[2] While there is a rule that an exception must not be repugnant to the grant, still a deed, like any other contract, must as a general thing be construed by considering the intentions of the grantor, as manifested by the language used.

*

*

We are unable to believe that the description in the deed, "Lot number sixty-one and the improvements thereon, which consists of one-half (1⁄2) each of the north and south walls of building designated as street number two hundred and twentyfive (225)," can leave serious doubt of the grantor's intention to reserve one-half of the wall in question. The language used was not well chosen, but it is sufficient to evince the intention, and when taken in connection with the clear language of the preceding contract it is plain enough. Lot 61 and the improvements thereon can hardly be the same as lot 61 and the improvements thereon, "which consists of one-half each of the north and south walls" of the building.

WEST, J. [1] The appellant sued Bux and Stadel and Bauerlein, the appellees, and alleged that he contracted orally with Bauerlein to sell him one-half of the north wall on lot 61, which wall was upon and up to the north line of the lot. That Bauerlein desired to purchase the one-half in order to make the wall a party wall; he owning the lot adjoining on the north. That before the oral contract was carried out the appellant started negotiations with Bux and Stadel for the exchange of lot 61 for certain mill property, and that during such negotiations he informed them that if the exchange was made it would have to be by reserving and retaining the north half of the north wall as he had made a contract to sell it to Bauerlein. That it was then agreed that the exchange should be made, the north half of the wall in question to remain the property of the appellant. That a written The petition shows that the purchasers contract was made for the sale of lot 61, knew, both by verbal information received

from the seller and by the written contract | ascertained by considering all the provisions which they had accepted, that the seller had of the deed, as well as the situation of the no intention to convey more than one-half of parties, and then to give effect to such inthe north wall, and the words employed in tention if practicable, when not contrary to the deed themselves operated as a further law." Section 836. notification of the grantee's intention.