Johnston v. Mohrabacker

Opinion by STEPHENSON, 0. The plaintiff in error made an offer to the de endants in error to purchase real estate situated in Shawnee, upon certain conditions named. The owner accepted the offer on the lOili day of October, and bound herself to- sell and convey the property free and clear of all incumbrances for the purchase price named. The owner drew draft, with deed attached, on the -plaintiff; in error for the agreed purchase price. The plaintiff in error advised the owner that the abstract' showed the current taxes as a lien charge against the land, and 'requested the owner to cause the taxes to be .paid. The owner advised the proposed purchaser that she would not pay the taxes, and that the purchaser could either pay the taxes and the purchase price agreed upon for the land, or decline to take the conveyance. The writings entered into between the parties constituted a valid and binding contract on the owner to convey the land to the plaintiff in error for the sum of $4,000. Section 9784, C. O. S. 1921, became a part of the contract which was entered into after October 15th. The section provides that ad valorem taxes assessed against real estate shall become a lien on such real estate after the 15th day of October; that if the owner conveys the real estate thereafter, the grantor should pay such tax. The plaintiff in error held an enforceable contract againsc the owner, entered into after the 15th day of October, and was entitled to a conveyance of the premises for the sum of $4,000, free and 'dear of all incumbrances and tax. The owner took up the draft for $4,000 and received a deed. Thereupon, the purchaser commenced his action against the owner for the recovery of the sum of money paid in settlement of the taxes, and garnisheed sufficient of the funds paid into the bank for the deed to .answer for the judgment and coses. The cause was tried upon an agreed statement of fads which set forth the matters referred to herein. The trial of ihe cause resulted in a judgment for the dependan!*, and the discharge of the garnishee. The plaintiff has appealed the cause here, and assigns as error for reversal that the judgment is contrary re- the law and the facts. It was error for the court to deny the plaintiff recovery in this case on. the agreed statement of facts between the parties. The cause is reversed and remanded, with directions co enter judgment on (he agreed statement of facts for che plaintiff, in error. By the Court: It is so ordered.