Hymers v. Branch

• Citation: 6 Mo.App. 511
• Parties: EDWARD H. HYMERS, Respondent, v. JOSEPH W. BRANCH, EXECUTOR, Appellant.
• Decision Date: 11 February 1879
• Court: Court of Appeal of Missouri (US)

6 Mo.App. 511

EDWARD H. HYMERS, Respondent,

v.JOSEPH W. BRANCH, EXECUTOR, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 11, 1879.

A purchaser is not bound to take a doubtful title; and a court will not decree specific performance of a contract to purchase real estate when the agreement is for a good title and all reasonable doubt as to the title is not removed; and though the court may entertain a favorable opinion of the title, yet if that opinion may be fairly questioned by competent persons it will not decree specific performance.

APPEAL from St. Louis Circuit Court.

Affirmed.

IRWIN Z. SMITH, for appellant, cited: Ivory v. Murphy, 37 Mo. 19; Becker v. St. Charles, 37 Mo. 19; McGowan v. West, 7 Mo. 570.

HORATIO D. WOOD, for respondent, cited: Fry on Spec. Perf. 573-579, note 2; Luckett v. Williamson, 31 Mo. 54; Watts v. Waddell, 1 McLean, 200; Bates v. Delaven, 5 Paige, 299; Gaus v. Renshaw, 2 Barr, 34; Brooklyn v. Armstrong, 45 N. Y. 234.

BAKEWELL, J., delivered the opinion of the court.

This is an action to recover $1,000 paid by plaintiff to the defendant's testator. The petition alleges that Gartside, in November, 1875, agreed with the plaintiff to convey to him, by indefeasible title, a lot in the city of St. Louis on which was an ice-house, for $10,000, of which $1,000 was cash, and the balance in periods running through four years; that plaintiff made the cash payments and performed the contract on his part, but that deceased failed to comply with the agreement, and was incapable of doing so because the property in question is a public wharf, and subject to be so used by adjoining property-holders.

The answer admits the contract and the cash payment, and denies the other material allegations.

The cause was tried by the court. There was a finding and judgment for plaintiff, and defendant appeals.

It appears from the testimony that one Buchanan owned a tract of land fronting on the river in the northern part of the city, and having subdivided the tract into blocks, streets, alleys, and lots, by a plat approved by the city engineer, and named it Buchanan's addition, he offered the lots for public sale according to the plat, on October 1, 1867. The plat showed a wharf four hundred feet wide, on the river front, bounded east by block 1 of the addition. The eastern boundary of block 1 is a prolongation of the western boundary of the city wharf. Lithographic plats of the property, showing the wharf four hundred feet wide, were distributed at the sale, and the line of wharf marked by flags. Both Buchanan and the auctioneer represented at the sale that the wharf was as stated in the plats; and the auctioneer says that he enlarged at the sale on the advantages of the wharf, and that he sold the lots in block 1 at double prices on account of the wharf. At the time of the sale, the city had taken steps to condemn the levee as marked on the plat, and for a considerable distance north and south, but these proceedings fell through. The plat was subsequently recorded. But this was not done till after the sale. By deeds of the date of the auction sale (October 1, 1867), Buchanan conveyed to one Shaw lots 3 and 4, and to Redemeyer lot 1 of block 1. These deeds were recorded respectively March 29, 1869, and October 20, 1872, and describe the lots as fronting “on the west line of wharf 400 feet wide.” By deed of January 29, 1868, recorded May 20, 1868, Buchanan conveyed to Wigand lots 10 and 11, block 1, described in the deed as fronting on the west line of the wharf.

The lot in controversy lies immediately in front of lots 1, 2, 3, 4, and 5, of block 1, on that part of the addition marked “wharf 400 feet” on the plats, and leaves a space of seventy feet between its western line and the eastern line of the last-named lots. It was purchased by Smith and Gartside of Buchanan, in 1872, for the purpose of building an ice-house. When they began to build the ice-house, the owners of lots 1, 2, 3, 4, and 5 remonstrated, and said the land was a wharf. Smith and Gartside then had the title examined by an expert, who gave them a written opinion that, by reason of the wharf, they had no good title to the lot. However, they proceeded with the ice-house, and spent $13,000 upon it. In September, 1875, Smith conveyed the ice-house property to Gartside. No further objection was made to Smith by the abutting owners up to the time he sold. One Stanard, who had heard the announcements about the wharf at the auction sale, and who subsequently purchased the lots originally purchased by Shaw by deed bounding the property by the wharf, testified that the ground in front of block 1 was then used as wood and lumber yards and as a private landing. Redemeyer and Stanard claim the front as a wharf; and Redemeyer and Shaw claimed it as a wharf till Shaw sold. Buchanan says that he has been in possession of the property marked “wharf” on his plats, renting it for landing purposes, and paying taxes on it; Gartside and Smith and their representatives having been...