Dutton v. Dutton

Citations

• 113 Kan. 146
• 213 P. 326
• 1923 Kan. LEXIS 352

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Rescission—Restoration of Everything Received Must Be Tendered. One asking to rescind a contract based upon sufficient consideration and wholly executed, for fraud, must restore or offer to restore to the other party the money or thing received under the contract, and so far as-practicable place him in the position he was in at the time of the execution of the contract.</p> <p>2. Same — Contract Cannot Be Affirmed in Part and Repudiated in Part. A party cannot affirm a contract in part and repudiate it in part nor hold some of its benefits and at the same time evade its disadvantages.</p> <p>3. Same — Postnuptial Contract Fully Executed — No Ground for Rescission Stated. A postnuptial contract, fully executed, settling property rights between a husband and wife where circumstances and conditions were such as to warrant a divorce, and where the health and happiness of the parties made a separation necessary and in fact inevitable and where the property apportioned to the wife was a fair if not an adequate allowance, and where she relinquished all right to the real estate and other property reserved to him, she cannot, without setting aside the contract, claim any of the property so reserved, although it may have been previously occupied as the homestead of the parties.</p> <p>4. Divorce — Foreign Divorce Decree — Alimony. As to the divorce subsequently procured by the husband in another state, the rule of McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546, is followed.</p>