Craft v. Bent , 8 Kan. 328 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

On the first day of June, 1869, plaintiff and defendants entered into a written contract by which plaintiff sold to defendants a certain tract of land in Labette county, and bound himself-to convey the same “by a good and sufficient deed of warranty, on or before the first day of January 1870, or as soon thereafter • as a title can be obtained by the said Craft.from the IT. S. government.” Not complying with his contract,.defendants brought their action in the district court to compel.the execution of a deed. A demurrer was filed to their petition, which was overruled by that court and judgment entered in their favor for the relief sought. Of this judgment plaintiff now complains, and seeks its reversal.

i construction offéciMrfaae-; murrer. The petition alleged atender of $9.75; that the tract of land contained 7f acres, and that the amount of $9.75 so tendered was the amount which the parties had agreed should be paid for the land. A copy of the contract is attached to the petition. Prom the terms of this contract plaintiff in error claims that the tender was insufficient in amount. The language used defendants in error are to pay “ the sum of s^x dollars and twenty-five cents, and as much more as spa]i necessary -to make up the entrance price of said land.” It is averred in the petition that the entrance price was $1.25 per acre, or a few cents less than $9.75, the amount tendered. Plaintiff in error claims that the amount due was the $6.25 in addition to the entrance price, $9.75, or $16 altogether. We do not so understand the stipulation. The price to be paid was to be at least $6.25; and if the entrance price should prove to be more than that, then the amount should be increased till it equaled or made up such entrance price. It may be conceded that the language is not perfectly perspicuous. But it is averred in the petition that $9.75 was the amount agreed upon, which averment is by the demurrer admitted to be true, except so far as the plain meaning of the contract attached overcomes the admission. Of course, the construction of a contract is matter of law, which by a demurrer is not admitted to be as claimed; but where the language is susceptible of two interpretations, an averment that the parties used it in the one sense may ordinarily be considered as admitted by the filing of a demurrer, and the contract construed as though it bore but the one meaning. The suggestion that the parties must have known the area of the tract, and that it could not reasonably be supposed that plaintiff would contract to sell the land at the exact price he should have to pay for it, has little force, for this may have been but the inferior part of a larger tract he was seeking to purchase, and in addition, by the terms of the contract, he reserved to himself the right to remove all the saw timber thereon.

3. inteest^ gms to nm. 3. Decree* re-reversal. It is further claimed that interest on the $9.75 from the date of entry to the time of tender should have been included in such tender. We think not. Payment was to be made by the terms of the contract “ upon the making and exeouting said deed.” Until a ■ tender of such deed interest would not begin to run. It is further objected that the decree required Craft “together with his wife, if any he have,” to make execute and deliver a deed for the premises. It does not appear that Craft has a wife. It does appear that no such person was made a party, or served with process, or complains decree. Craft can bardly expect to secure a reversal of a judgment because of the possibility of his having a wife who is unaffected by and satisfied with such judgment.

i. Contract^ecreemocü-’ flei It is averred in the petition that the money tendered “ is in , the hands of W. Posey, a resident of Oswego, Kansas, subject to the order of Craft, upon the execution of the deed.” The decree orders that such sum so deposited be paid to Craft 011 demand. We think this portion of the decree should be modified. Equity, when it takes cognizance of any controversy between parties, should if possible so dispose of it as to prevent further litigation. Posey not being a party to this suit might decline to pay Graft the money, and another suit be required to obtain it. The deposit with Posey was not sanctioned or authorized by Craft. Posey may be solvent, or not. He may have left the State, or died since the commencement of this suit. The deposit with him was at the risk of the depositors. The decree will therefore be so far modified as to require defendants in error to pay plaintiff in error the amount of $9.75, and that upon such payment said plaintiff make, execute and deliver the deed provided for in the decree.

5. contracts; presumed. It is further insisted that the contract was void as in contravention of the laws of the United States; that the tract was a part of the public lands; that Craft could enter it only by making oath that no other person had any interest therein, and that he was not entering tor the benefit of any other person. It is sufficient to say in reply to this that the petition does not disclose the status of the land, what steps if any'Craft had already taken to perfect Ms title, or what interest he had in the land. We cannot presume anything in favor of the illegality of the transaction. We must consider it legal until facts are presented which compel us to hold it otherwise.

The judgment of the district court will, except as modified above, be affirmed with costs against the plaintiff in error.

All the Justices concurring.