Saturday, December 28, 2013

Lohmeyer v. Bower case brief

Lohmeyer v. Bower case brief summary
227 P.2d 102 (1951)

Plaintiff vendee petitioned to rescind a contract in which he had agreed to purchase certain real estate, claiming that title tendered by defendant vendors was unmerchantable. The vendors contested the vendee's right to rescind and cross-petitioned for specific performance. Following a bench trial, the Lyon District Court (Kansas) rendered judgment for the vendors generally and decreed specific performance of the contract. The vendee appealed.

The vendors agreed to convey the subject property with an abstract of title showing good merchantable title, free and clear of all encumbrances. After the sale, it became clear that the house on the property violated a local ordinance providing that no frame building should be erected within three feet of a side or rear lot line. The vendee sought rescission of the real estate contract. The vendors sought specific performance of the contract. The district court required specific performance. The vendee sought review.


  • The court reversed, holding that the violation of the ordinance and an additional violation of the restrictions imposed by a dedication declaration so encumbered the title to expose the party holding it to the hazard of litigation and make such title doubtful and unmarketable. 
  • Because the vendors had contracted to convey such real estate to the vendee by warranty deed with an abstract of title showing good merchantable title, it followed that the vendors could not convey the title contracted. 
  • Therefore, the trial court should have rendered a judgment rescinding the contract.

The court reversed the district court's judgment with directions to to cancel and set aside the contract and render such judgment as may be equitable and proper under the issues raised by the pleadings.

See Also: Abstract of Title definition -

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