McNutt v. Nellans

Citations

• 82 Kan. 424
• 108 P. 834
• 1910 Kan. LEXIS 272

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Doubtful or Unmarketable Title. Equity will not compel a purchaser under an executory contract for the sale of land to accept the title if doubtful or unmarketable.</p> <p>2. ■ — =- “Doubtful” Title Defined. A title is doubtful if it exposes the party holding it to the hazard of litigation.</p> <p>3. - Vendor’s Title Held Doubtful. In an action to recover money paid on the purchase price of land, on account of the failure of the vendor to furnish an abstract showing clear title, it appeared that the vendor’s title rested upon a deed executed by a foreign assignee solely by virtue of an order of a court in the state of Iowa. Before the action was tried the ' vendor obtained a judgment quieting his title, upon service by publication, against the foreign assignor, the assignee and the party to whom the assignee had conveyed, and asked for specific performance against the plaintiff. Held, that the title tendered is so doubtful that the plaintiff should not be compelled in equity to accept the same.</p> <p>4. Contracts — Action to Recover Money Paid — Prayer by Defendant for Specific Performance — Estoppel to Assert Invalidity of Contract — Homestead—Joint Consent. In such an action, where the defendant answei*s alleging a full compliance with the terms of the contract and asks for specific performance and judgment for the balance of the purchase money, and offers proof showing the execution by himself and wife of a deed conveying the land to the plaintiff, he is es-topped to claim in the same action that the contract for the sale of the land is void on the ground that the land comprises a homestead occupied by himself and wife and that the wife failed to join in the contract.</p>