Kitchener v. Jehlik

Citations

• 85 Kan. 684
• 118 P. 1058
• 1911 Kan. LEXIS 136

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Specific Performance — Oral Contract — Statute of Frauds. Where a contract has been made in writing for the-purchase and sale of real estate, which provides that the-purchaser may pay the entire purchase price in cash or may assume the payment of a mortgage as a part of such purchase price, and where thereafter the seller, on request therefor, refuses to pay off the mortgage, preparatory to closing the transaction, an oral agreement between the parties that the purchaser will assume the mortgage does not constitute a new contract.</p> <p>2. - Same. In such case, the oral agreement that the-purchaser will elect to close the deal upon the alternative provision of the option, does n.ot render the written contract, unenforceable under section 6 (Laws 1905, ch. 266, § 1, Gen. Stat. 1909, § 3838) of the statute of frauds and perjuries.</p> <p>3. - Specific Performance — Deed to Third Party — Pendente Lite. In an action for the specific performance of a contract to sell and convey land, it constitutes no adequate defense if the defendant proves that subsequently to the commencement of the action he has executed, acknowledged and delivered a deed to another for the same land.</p> <p>4. Deeds — Presumption as to Time of Delivery. A deed purporting to convey land, in the absence of evidence as to the time of delivery, will be presumed not to have been delivered prior to the date of acknowledgment.</p> <p>5. -Purchaser Pendente Lite. One who accepts a deed to such land after the commencement of such action is a purchaser pendente lite and his title to the land is subject to the result of such action.</p>