Niquette v. Green

Citations

• 81 Kan. 569
• 106 P. 270
• 1910 Kan. LEXIS 394

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Findings of Fact — Evidence. The findings of fact in this case are sustained by sufficient competent evidence.</p> <p>2. Tender — Action for Specific Performance — Repudiation by Vendor. Tender to a vendor is not a condition precedent to the maintenance of an action for specific performance against him when he has put himself in default by repudiating the obligation of the contract of sale.</p> <p>3. Wills — Power of Executor to Sell and Convey Land. The will involved in this case granted power to the executor to sell and convey the real estate in controversy.</p> <p>4. Foreign Executor — Contract to Convey Land — Recording of Will. A foreign executor with testamentary power to sell and convey land in this state may make a valid contract to convey before the will has been admitted to record in this state. All that section 2953 of the General Statutes of 1901, which governs the matter, requires is that the will shall be of record at the time of conveyance.</p> <p>5. - Testamentary Power to Convey — Proof. In an action for specific performance against a foreign executor it is not necessary that testamentary power to convey be established by a record of the will in this state; and if the executor plead the will to show that it contains no grant of power to convey he can not dispute its existence, authenticity or terms.</p> <p>6. -- Conveyance of Land — Authority—Probate Court. The statute cited in paragraph 4 authorizes a foreign executor, acting under testamentary power, to convey land in this state without the intervention of the probate court, except to record the will, when no administration upon the estate of the testator has been, granted in this state.</p> <p>7. Specific Performance — Increase In Value of Land — Minors. A foreign executor acting under testamentary power has no standing in equity to resist specific performance of a fair and just contract to convey merely because the land has risen in value since the contract wa