The opinion of the court was delivered by
Burch, J.:
The plaintiff takes the position that he is a vendor of land suing for reparation on account of the refusal of the vendee to comply with the contract. The contract is wholly executory, and no claim is made that the vendee is unable to perform. In such cases the vendor is entitled to redress in one of two ways: He may have his contract enforced according to its terms and receive whatever he has contracted for, or he may have damages for the loss of his bargain. If he has sold for cash he may have the purchase money. In such a case he must allege tender and willingness and ability to perform on his side, so that the action becomes in all essential respects one to compel the vendee •specifically to perform. (See Lumber Co. v. Town Co., 51 Kan. 394.) If he has agreed to take other real estate he may compel the vendee to convey it to him. But, if the contract be one for the exchange of lands, neither the vendor nor the court has any authority to substitute for it, in legal effect, a contract to sell for cash, by giving the vendor the value of the land instead of the land itself. He must either take the land or take whatever damages he has sustained. In the latter case [546]*546the measure of damages is the difference in value between what he was to receive and what he was to give.
“Where two parties enter into a contract for the exchange of land and the payment of money, and afterward one of them without sufficient reason refuses to perform on his part, and the property which he was to give is of greater value than the property which he was to receive, and the other party sues him for damages, held, that the measure of damages is the difference in value between the property which the plaintiff was to receive and that which he was to give in consideration therefor.” (Bierer v. Fretz, 32 Kan. 329, syl. ¶ 8.)
What the remedies of a vendor may be under circumstances other than those here presented need not be discussed. The instruction given the jury relating to the measure of damages, and upon which the verdict rests, was erroneous.
Ordinarily a vendee should make all his objections to the title disclosed by the abstract furnished him when he returns it with his requirements, but the law does not put him into a straight j acket and absolutely forbid him to take any other course, irrespective of the attitude of the vendor. If the defendant’s testimony be true (and that was a matter for the jury), when he returned the abstracts with certain written requirements he verbally questioned the title because of the oil-and-gas leases, and reserved the right to satisfy himself at a later time regarding them. The plaintiff made no complaint of the proposed course of conduct, but said he was going to give a perfect title, and proceeded to make preparation accordingly, uninfluenced by what the defendant said and did. In virtually withdrawing this evidence from the jury and binding the defendant by the arbitrary rule stated in the instructions the court erred.
Since the judgment must be reversed, the question arises as to what the direction to the trial court shall be.
The oil-and-gas leases constitute a cloud on the plain[547]*547tiff’s title. The affidavit attached to the abstract does not remove this cloud from the record. Who Miller is or where he resides does not appear, and he might not be available as a witness for the defendant if the latter were obliged to resist a claim made under the leases. Some of the limitations upon the force of affidavits used in connection with abstracts of title are stated by Warvelle as follow:
“There is, however, another class of affidavits that are resorted to by conveyancers under a choice of difficulties, and which frequently figure on the records and in the abstract These are the ex parte sworn statements of individuals respecting some question raised -by the instruments, usually relating to deaths, marriages, births, etc., concerning which no other or better evidence can be found. Family records are not universal, nor even where, as is the custom of many of the states, a record of births, deaths and marriages is kept by proper officers, can the requisite information be always obtained.. When such is the case resort must be had to the next best and most available testimony, which is usually supplied by the affidavit of some person setting forth his knowledge of the nature of the matters under inquiry. Such an instrument, it is true, possesses no legal validity, and, not being made under the sanction of a court or in any legal proceeding, is not strictly evidence for any purpose, yet, being usually all that can be adduced, it has been, as it were, by common consent of the profession, adopted as evidence in the examination of titles and the testimony taken as corroborative evidence of general reputation, concurrent possession, etc.” (Warv. Abstr. p. 318.)
Except in cases of the kind indicated, a vendee can not be compelled to accept a title depending for its validity upon parol evidence which he may not be able to command when needed.
“It has been frequently held that if parol evidence should be necessary to remove any doubt as to the Validity and sufficiency of the vendor’s title, the purchaser can not be compelled to complete the contract. He can not be required to take a doubtful title which he must fortify, if impugned, by resorting to evidence perishable in its nature, and possibly unavailable to him [548]*548when the necessity for it occurs. It must be observed, however, that a title is not necessarily doubtful simply because it requires to be supported by parol testimony. As a general rule, for example, title by inheritance depends principally upon matters in pais, or facts resting in the knowledge of witnesses. If those facts be clearly sufficient to establish the right of the vendor as heir, it is apprehended that the purchaser could not object to the title simply because it could not be established by record evidence. But a different case is presented where the fact of inheritance itself is in doubt. There may be circumstances to show that the ancestor is not dead, or that he has left a will, or that the vendor is not sole heir. Then it is that the title becomes unmarketable from the necessity of parol proof to remove the doubts which surround it.” (Maupin Mafk. Tit. Real Estate, 2d ed., § 289.)
The plaintiff claims that the defendant is trying to “mend his hold” by objections to the title not specified in the written requirements, and that he is estopped from so doing upon well-known principles illustrated in numerous decisions. The difficulty with this position as that certain indispensable elements of estoppel are wanting. The defendant’s conduct was not relied on, the plaintiff did not change his own situation because ■of it, and he has suffered nothing in consequence of it. He did not even incur the expense of this litigation upon the strength of it. No estoppel is pleaded as a ground of recovery. Although the petition refers to the making of the written requirements, it does not •declare that the plaintiff regarded those requirements ■as final and shaped his course accordingly. On the •other hand, the theory of the petition is that the plaintiff has a perfect title, that he made his abstracts show a perfect title, that his deed will convey a perfect title, .and that the fault of the defendant lies in not accepting and paying for a perfect title according to his contract so to do.
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The opinion of the court was delivered by
Burch, J.:
The plaintiff takes the position that he is a vendor of land suing for reparation on account of the refusal of the vendee to comply with the contract. The contract is wholly executory, and no claim is made that the vendee is unable to perform. In such cases the vendor is entitled to redress in one of two ways: He may have his contract enforced according to its terms and receive whatever he has contracted for, or he may have damages for the loss of his bargain. If he has sold for cash he may have the purchase money. In such a case he must allege tender and willingness and ability to perform on his side, so that the action becomes in all essential respects one to compel the vendee •specifically to perform. (See Lumber Co. v. Town Co., 51 Kan. 394.) If he has agreed to take other real estate he may compel the vendee to convey it to him. But, if the contract be one for the exchange of lands, neither the vendor nor the court has any authority to substitute for it, in legal effect, a contract to sell for cash, by giving the vendor the value of the land instead of the land itself. He must either take the land or take whatever damages he has sustained. In the latter case [546]*546the measure of damages is the difference in value between what he was to receive and what he was to give.
“Where two parties enter into a contract for the exchange of land and the payment of money, and afterward one of them without sufficient reason refuses to perform on his part, and the property which he was to give is of greater value than the property which he was to receive, and the other party sues him for damages, held, that the measure of damages is the difference in value between the property which the plaintiff was to receive and that which he was to give in consideration therefor.” (Bierer v. Fretz, 32 Kan. 329, syl. ¶ 8.)
What the remedies of a vendor may be under circumstances other than those here presented need not be discussed. The instruction given the jury relating to the measure of damages, and upon which the verdict rests, was erroneous.
Ordinarily a vendee should make all his objections to the title disclosed by the abstract furnished him when he returns it with his requirements, but the law does not put him into a straight j acket and absolutely forbid him to take any other course, irrespective of the attitude of the vendor. If the defendant’s testimony be true (and that was a matter for the jury), when he returned the abstracts with certain written requirements he verbally questioned the title because of the oil-and-gas leases, and reserved the right to satisfy himself at a later time regarding them. The plaintiff made no complaint of the proposed course of conduct, but said he was going to give a perfect title, and proceeded to make preparation accordingly, uninfluenced by what the defendant said and did. In virtually withdrawing this evidence from the jury and binding the defendant by the arbitrary rule stated in the instructions the court erred.
Since the judgment must be reversed, the question arises as to what the direction to the trial court shall be.
The oil-and-gas leases constitute a cloud on the plain[547]*547tiff’s title. The affidavit attached to the abstract does not remove this cloud from the record. Who Miller is or where he resides does not appear, and he might not be available as a witness for the defendant if the latter were obliged to resist a claim made under the leases. Some of the limitations upon the force of affidavits used in connection with abstracts of title are stated by Warvelle as follow:
“There is, however, another class of affidavits that are resorted to by conveyancers under a choice of difficulties, and which frequently figure on the records and in the abstract These are the ex parte sworn statements of individuals respecting some question raised -by the instruments, usually relating to deaths, marriages, births, etc., concerning which no other or better evidence can be found. Family records are not universal, nor even where, as is the custom of many of the states, a record of births, deaths and marriages is kept by proper officers, can the requisite information be always obtained.. When such is the case resort must be had to the next best and most available testimony, which is usually supplied by the affidavit of some person setting forth his knowledge of the nature of the matters under inquiry. Such an instrument, it is true, possesses no legal validity, and, not being made under the sanction of a court or in any legal proceeding, is not strictly evidence for any purpose, yet, being usually all that can be adduced, it has been, as it were, by common consent of the profession, adopted as evidence in the examination of titles and the testimony taken as corroborative evidence of general reputation, concurrent possession, etc.” (Warv. Abstr. p. 318.)
Except in cases of the kind indicated, a vendee can not be compelled to accept a title depending for its validity upon parol evidence which he may not be able to command when needed.
“It has been frequently held that if parol evidence should be necessary to remove any doubt as to the Validity and sufficiency of the vendor’s title, the purchaser can not be compelled to complete the contract. He can not be required to take a doubtful title which he must fortify, if impugned, by resorting to evidence perishable in its nature, and possibly unavailable to him [548]*548when the necessity for it occurs. It must be observed, however, that a title is not necessarily doubtful simply because it requires to be supported by parol testimony. As a general rule, for example, title by inheritance depends principally upon matters in pais, or facts resting in the knowledge of witnesses. If those facts be clearly sufficient to establish the right of the vendor as heir, it is apprehended that the purchaser could not object to the title simply because it could not be established by record evidence. But a different case is presented where the fact of inheritance itself is in doubt. There may be circumstances to show that the ancestor is not dead, or that he has left a will, or that the vendor is not sole heir. Then it is that the title becomes unmarketable from the necessity of parol proof to remove the doubts which surround it.” (Maupin Mafk. Tit. Real Estate, 2d ed., § 289.)
The plaintiff claims that the defendant is trying to “mend his hold” by objections to the title not specified in the written requirements, and that he is estopped from so doing upon well-known principles illustrated in numerous decisions. The difficulty with this position as that certain indispensable elements of estoppel are wanting. The defendant’s conduct was not relied on, the plaintiff did not change his own situation because ■of it, and he has suffered nothing in consequence of it. He did not even incur the expense of this litigation upon the strength of it. No estoppel is pleaded as a ground of recovery. Although the petition refers to the making of the written requirements, it does not •declare that the plaintiff regarded those requirements ■as final and shaped his course accordingly. On the •other hand, the theory of the petition is that the plaintiff has a perfect title, that he made his abstracts show a perfect title, that his deed will convey a perfect title, .and that the fault of the defendant lies in not accepting and paying for a perfect title according to his contract so to do. Under these circumstances the plaintiff is the.one who is really trying to mend his hold, and this for the purpose of obtaining full compensation for what is in fact a clouded title.
[549]*549The court desires to say here that the equities in favor of a vendor must be very strong before it will compel a vendee to take or pay for an unmarketable title under a contract for a perfect title. The plaintiff in the present case does not want damages for the loss of his bargain. In effect he seeks specific performance of the contract, and should he recover the defendant will be forced to accept a clouded title. In such cases the course pursued by Lord Chief Baron Alexander in the case of Warren v. Richardson, (Court of Exchequer in Equity) Younge’s Rep., appears to be just. The suit was brought to compel a lessee to accept a lease. By his conduct he had waived the right to object to the lessor’s title, and specific performance was decreed. On reference to a master to settle the terms of the lease it was discovered that the lessor could not make title. The opinion reads:
“This is a suit for a specific performance. The court was of opinion that the defendant had' waived what he would otherwise most clearly have had a right to, an inquiry into the plaintiff’s title; that is, into his power to make a valid lease, according to his agreement; in other words, to put upon the plaintiff the burden of showing his title, and proving it to be a safe one. Though the court thought the defendant had by his conduct waived that right, it has now come out collaterally, but I think clearly, that the plaintiff can not make a title according to his contract. It would be a. great hardship upon a party to force him to accept a title which is ascertained to be defective. It would be contrary to all the rules which prevail upon the subj ect of specific performance. The principles upon which courts of equity have proceeded on the subject of specific performance do not make a decree for a specific performance the necessary consequence, under all circumstances, of an agreement. Circumstances of hardship often prevent it. They recollect that the party is not without remedy, for, though he should be refused a specific performance, he has left to him his action upon the agreement. What creates the difficulty in this case is that the conduct of the party had barred his right to the usual investigation into the title; and this [550]*550defect is a defect of title. If the objection had been to the conveyance merely, the defendant would have had the full benefit of it without any doubt. But the objection is of another description. It is an objection to the title. It stands decided upon this record that the defendant had waived his right to call upon the plaintiff for the production of his title; on the other hand, it is clear that the plaintiff can make no good title, and, if the defendant took it, it would be defective.
“I have somewhat hesitated as to the fit course to be pursued under these circumstances. As I have stated, I have not met with any authority exactly in point to conduct me. I think that the most just course, and the best supported by the rules prevailing on this subject of specific performance, and which is sustained by the greatest variety of analogies, is, in consequence of its appearing that the plaintiff can not make the defendant a good title, to refuse a decree for a specific performance. A waiver of the defendant’s right to make the plaintiff produce his title does not seem necessarily to import that he will accept the title, though it should manifestly appear to be bad. I am of opinion, therefore, that I ought not to decree the execution of the lease settled by the master, or any other lease, but that the bill should be dismissed.” (p. 7.)
The dispute regarding the sufficiency of the plaintiff’s title is one of law only. The facts which defeat the plaintiff’s claim of estoppel were found specially by the jury. It is almost three years since the contract was made. Considerable time would be required to perfect the plaintiff’s title, if he seemed inclined to do so, and it is not probable that the contract would then represent to either party anything like what it did when they engaged themselves. Therefore the court has concluded to leave each one in the possession of what he has.
The judgment of the district court is reversed and the cause is remanded, with direction to enter judgment for the defendant.