Citation Numbers: 42 Kan. 334
Judges: Holt
Filed Date: 7/15/1889
Status: Precedential
Modified Date: 9/8/2022
Opinion by
The defendant in error, C. N. Ela, through his agents Riley & Burge, entered into a contract with George West, plaintiff in error, of which the following is the written evidence:
“Received of George West fifty dollars, on lots number 509, 511, 513 and 515, Lincoln street, Williams & Dillon’s addition, city of Topeka, Kansas; the purchase-price to be twelve hundred dollars, to be paid as follows: Fifty dollars cash down, eleven hundred and fifty dollars to be paid upon the delivery of a good warranty deed, sufficient to convey the property clear of all incumbrances. C. N. Ela.
Riley & Burge, Agents.”
Ela refused to convey; West then brought this action against Ela and his wife, Jennie N. Ela, for specific performance of contract. His averment in the petition concerning Jennie N. Ela is, “that the defendant, Jennie N. Ela, is the wife of her co-defendant, O. N. Ela, and claims to have some
“We, the jury impaneled and sworn, do upon our oaths find for the plaintiff, and against the defendant C. N. Ela.”
The action was passed until the 11th of June, 1887, when a motion for a new trial, which had been filed by defendant in due time, was overruled. The plaintiff then offered to prove the present value of the inchoate right or interest of the defendant Jennie N. Ela, as the wife of defendant, to the property described; and also at the same time, and after the court had given judgment in favor of Jennie N. Ela, asked the court to refer the case to a referee to be appointed by the court, to take proof and report the value of such right and interest; also at the same time asked the court to frame, direct, and submit to a jury the question of its value. These motions and offer to introduce testimony were denied and refused. Plaintiff excepted, filed his motion for a new trial, and brings the case here properly for review.
It is conceded that this property is not the homestead of the defendants. It is claimed by the plaintiff that the interest that defendant Jennie N. Ela had as the wife of co-defendant, was an incumbrance on the land in question, and that its value was a proper subject for judicial investigation and determination; and after having ascertained by proper evidence the value of her interest, whatever it may have been, should have been deducted from the purchase-price to be paid by plaintiff, if she refused to convey. Before we can pass upon the correctness of the claim of plaintiff, we are called upon
We recommend that the judgment be affirmed.
By the Court: It is so ordered.