Woleslagel v. Carson , 123 Kan. 568 ( 1927 )

The opinion of the court was delivered by

Btjrch, J.:

The action was one to cancel assignments of oil and gas leases. Plaintiff recovered, and defendants appeal.

The ground for cancellation was that the assignments were procured by fraud. Defendants paid $700 in cash, less a commission of $200, and gave a note, afterwards renewed, for the assignments. Judgment was taken against defendants by default, on publication service. Afterwards defendants were permitted to defend, and upon a trial the court found for plaintiff. The petition pleaded the leases had declined in value more than $700 while defendants had them, and did not offer to restore the money. The petition did offer to restore the renewal note. A general demurrer to the petition was overruled, but there is nothing in the record to indicate on what specific defect defendants relied. Just before the trial commenced, plaintiff’s counsel made the following tender:

“Now at the present time the plaintiff offers to do equity by returning to the defendants their $5,700 note, and paying into court the $700 that they put up on this transaction, and returning them to status quo.”

Defendants’ counsel said the tender came too late, and refused it. At the conclusion of the trial plaintiff paid the money into court.

Defendants contend the judgment should be reversed because tender was not pleaded. Conceding the petition was demurrable, the omission was cured before trial by tender in open court. It is not asserted the tender would have been accepted if made sooner. No prejudice on account of preparation or lack of preparation for trial was. suggested to the district court, and the judgment placed defendants in the position they occupied before they paid for the leases. The result is, the contention is without merit.

After plaintiff obtained judgment by default, and before defendants were given leave to defend, plaintiff sold the leases. The fact of sale was shown by plaintiff’s evidence. It was not shown the vendees were purchasers in good faith in consequence of the judgment. So far as the record discloses, they would be bound by the judgment in favor of defendants, and it is sufficient for defendants that a judgment in their favor would clear the title to their assignments.

The costs were taxed to defendants, and were made a lien on the money which plaintiff paid into court. Defendants say that under any theory this part of the judgment is erroneous. The court knows of no sound theory under which it is erroneous.

The judgment of the district court is affirmed.