Dunn v. Mills

Citations

• 70 Kan. 656
• 79 P. 146
• 1905 Kan. LEXIS 25

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Action for Purchase-price — Rescission and, Restoration Necessary to a Defense. In the absence of fraud, insolvency of the vendor, or other special circumstance, a vendee of land who has been given possession under a contract of sale, calling for a title in fee simple free from encumbrance, and whose possession has not been disturbed, cannot resist payment of the purchase-price, when due, on the ground of a lack of title in the vendor unless he rescind the contract and restore possession to the vendor.</p> <p>2. -~ When the Action May be Maintained. If a vendor of land, under a contract of sale calling for the conveyance of a fee-simple title free from encumbrance and an abstract of title, put the vendee in possession, and upon default in the payment of the purchase-price tender to the vendee deeds in due form and documents purporting to be abstracts of title to the land, and no objection be made to the deeds or abstracts or to the title offered, and no offer be made to rescind the contract or to surrender possession, the vendor may maintain an action to recover the purchase-price without further performance or further offer to perform on his part.</p>