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Lohmeyer v. Bower

227 P.2d 102 (1951)

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Lohmeyer v. Bower

Kansas Supreme Court

227 P.2d 102 (1951)

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Facts

Dr. Lohmeyer (plaintiff) contracted to purchase property from the Bowers (defendants). The deed that transferred with the sale warranted (among other things) that the property was transferred “free and clear of all encumbrances,” but “subject to all restrictions and easements of record applying to this property.” Lohmeyer had a lawyer examine the title, and determined that two zoning violations existed on the lot: the house situated on the lot was only one story high, whereas the regulations required that all houses be two stories in height; and it was situated too close to the border of a neighboring lot. After Lohmeyer informed Bowers of the violations, Bowers offered to purchase and convey additional land behind the house (correcting the second violation), but Lohmeyer refused. Lohmeyer brought suit against the Bowers seeking to rescind the contract of sale and for return of his earnest money deposit. Bowers counter-sued demanding specific performance of the contract. The trial court ruled in favor of the Bowers and ordered specific performance. Lohmeyer appealed.

Rule of Law

Issue

Holding and Reasoning (Parker, J.)

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