Avery v. Morrison , 40 Kan. 151 ( 1888 )

The opinion of the court was delivered by

VALENTINE, J.:

This was an action brought by George W. Morrison in- the district court of Chautauqua county, against Joseph Avery jr. and wife, Sarah Avery, and Joseph Avery sr. and wife, Dorothy Avery, to compel the specific performance of a certain written contract for the conveyance of certain real estate. It appears that originally the real estate belonged to Joseph Avery jr., and that by a written contract executed by himself and wife they agreed to convey such real estate to George W. Morrison, upon the consideration1 of Morrison’s selling and delivering to them a certain mare, and executing and delivering to them a promissory note for $75, due in twelve months, and assuming the payment of a certain mortgage on the property for $700. Morrison performed all the provisions of the contract on his part. Afterward Joseph Avery jr. wished to rescind the contract, and in the absence and without the knowledge of Morrison, turned the mare into a pasture of Morrison’s tenant, and thejr brought the note back to Morrison and asked Morrison to receive the same and to rescind the contract, which Morrison refused. Avery then tore the note up and destroyed the same. Afterward he and his wife conveyed the property to his father, Joseph Avery sr., his father at the time having full notice of Morrison’s rights. Morrison then commenced this action to compel the parties to execute a deed of conveyance to him for the property — subject, however, to the $700 mortgage. The answer was a general denial, not verified. The case was tried before the court without a jury, and the court made special findings of fact and conclusions of law, and rendered judgment in favor of the plaintiff and against the defendants; and to reverse this judgment the defendants, as plaintiffs in error, bring the case to this court.

The only claim of error urged in this court is that the court below rendered judgment in favor of the plaintiff below, and against the defendants below, notwithstanding the fact that the aforesaid promissory note had been destroyed, and the mare turned into the tenant’s pasture. Now these things are no defense to the plaintiff’s action. The plaintiff is not responsible for what the defendants did with either the note or the mare. Besides, the destruction of the note did not extinguish the debt of the plaintiff to the defendants. The debt still existed just as much after the destruction of the note as it did before, and the owner of the debt could still recover the same from Morrison when it became due. And the defendants did not lose any property.in the mare by turning the same into the plaintiff’s tenant’s pasture. They still owned the mare; and the plaintiff did not have any interest in her.

The judgment of the court below will be affirmed.

All the Justices concurring.