Isaacs v. Skrainka
| Decision Date | 04 June 1888 |
| Citation | 8 S.W. 427,95 Mo. 517 |
| Parties | Isaacs v. Skrainka et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Amos M. Thayer Judge.
Reversed and remanded.
David Goldsmith for appellants.
(1) The mere fact that plaintiff's title is imperfect debars him from the remedy sought in this case. (a) The bargain was in fact made upon the basis of perfect title in the respondent. (b) The mere provision in the contract of sale, that the conveyance of the property sold should be made by quit-claim deed, does not detract from the right of appellants to good title, freed from any encumbrance, other than the taxes, of which they, in express terms, assumed the payment. Washington v. Ogden, 66 U.S. 456; In matter of Hunter, 1 Edw. Ch. 1; Waterman on Spec. Perf. 528, 414; 1 Sugden on Vendors [Perkins' Am. Notes], 24, note b, p 511; Shepherd v. Kealley, 1 C. M. & R. 117; Cross v. Noble, 67 Pa. St. 78; Goettal v Sage, 10 A. 891. (2) The concealment by respondent of the fact that the special tax bills for street improvements were outstanding, and that suits were pending thereon, is a sufficient defence to the present action. Waterman on Spec. Perf., secs. 298, 299, 361; Bascomb v. Beckwith, 8 L. R. Eq. Cas. 100; Hetfield v. Willey, 105 Ill. 286; Shirley v. Stratton, 1 Br. Ch. 440; Broad v. Manton, 12 L. R. Ch. Div. 131; Heywood v. Mallalien, 25 L. R. Ch. Div. 357. (3) The defence of fraudulent misrepresentation is sustained. (a) The testimony of the witnesses for appellants outweighs that of the witnesses for respondent, even if the evidence of the parties to the suit be disregarded. Henze v. St. Louis, 71 Mo. 639; Still v. Hindekopers, 17 Wall. 394. (b) But, even if the evidence of respondent counterbalances that of appellants, which is the utmost that can be claimed with any show of reason, the decree should, in this suit, be for the appellants. Veth v. Gierth, 92 Mo. 104, 105; Hetfield v. Willey, 105 Ill. 286; Broad v. Manton, 12 L. R. Ch. Div. 131; Race v. Weston, 86 Ill. 94, 95; Kerr on Fraud and Mistake [2 Ed.] 414, 415.
W. G. Marshall and Collins & Jamison for respondent.
(1) This court will defer largely to the findings of fact by the lower court. Chapman v. McIlwrath, 77 Mo. 38; Hendricks v. Woods, 79 Mo. 590; Erskine v. Loewenstein, 82 Mo. 301. And will not interfere with such findings unless they are manifestly wrong. Ford v. Phillips, 83 Mo. 523; Judy v. Bank, 81 Mo. 404; Snell v. Harrison, 83 Mo. 652. (2) The agreement of defendants was to take the title of plaintiff to the property in the condition it was, on the day of sale, subject to all incumbrances, liens, and defects. This is the plain meaning of the clause that Isaacs would convey by a quit-claim deed. (3) There is no foundation for appellants' contention that the bargain was made on the basis of a perfect title in respondent, nor that the title being imperfect debars plaintiff's recovery, nor that appellants were entitled to a "good title, freed from any incumbrance," etc. On the contrary, a quit-claim deed only puts the purchaser in the shoes of the seller, vesting in the purchaser only such title as the seller has. If this were not true there would be no difference between a warranty and a quit-claim deed. (4) Isaacs was not obliged to disclose any defects in the title. The parties were adverse parties, actually engaged in legal warfare, dealing at arm's length. Besides, the provision in the contract for a quit-claim deed was sufficient notice to the purchaser to put him on his guard and to cause a prudent man to make inquiry about the title. It was an express notice that Isaacs would not be responsible for any defects in the title. Holland v. Anderson, 38 Mo. 55; Bailey v. Swick, 61 Mo. 213; Dunn v. White, 63 Mo. 181. (5) The defence of fraudulent misrepresentation is not sustained. The testimony of appellants' witnesses does not outweigh that of respondent's, and the two cases cited by appellants' counsel do not and manifestly could not decide any such a proposition. (6) It is not true that if the evidence in this case on the subject of fraudulent misrepresentation is equally balanced, that the decree should be for defendant. Quite the contrary is true. The burden of proving the affirmative defence of fraud is on the appellants. They admit the contract but seek to avoid it. If they have not made out an avoidance by a preponderance of testimony, the plaintiff is entitled to a decree on the undisputed evidence of the contract and on defendant's admission of the contract.
This is a suit brought by Isaacs for the specific performance of a written contract, dated February 17, 1882, and signed by the parties therein named. The contract is in the following words: "William Skrainka and Claus Vieths agree to take all the property of J. L. Isaacs now proceeded against on special tax bills in their favor and against said property, before Justice Taaffe and in the circuit court, city of St. Louis, at fourteen hundred dollars, and J. L. Isaacs agrees to convey to them said property by quit-claim deed for said sum."
There were suits pending before the justice and in the circuit court to enforce tax bills against sixteen lots, owned by Isaacs. Skrainka and Vieths, the present defendants, were the owners of the tax bills, and were the plaintiffs in those suits. One of the suits was on trial in the circuit court, under an agreement that the others should abide the result of that one. During the trial the contract in question was made in settlement of the pending litigation. About two weeks thereafter, Isaacs tendered defendants a quit-claim deed, and demanded the fourteen hundred dollars; but defendants refused to accept it, and refused to pay the amount. Isaacs now tenders the deed with his prayer for specific performance.
The substance of the defence is, that there were other outstanding tax bills against the property for other improvements, amounting to about one hundred and fifty dollars; that Isaacs fraudulently concealed the existence of these tax bills, and represented the property to be free from such liens. The contract sued upon was made under these circumstances: One of the defences made by Isaacs in the tax bills suits was, that they amounted to more than the value of the property. He produced a witness who valued the property at five dollars per front foot, and thereupon the defendant proposed, in open court, to take the property at that price. The property has a frontage of four hundred feet, making the offer two thousand dollars. Isaacs accepted the proposition. The court took a recess until two p. m., to give the parties time to settle. Then defendants insisted that these tax bills, amounting to about fourteen hundred dollars, should be deducted, but Isaacs did not understand the proposition in that way, and the parties separated without coming to a settlement. After recess the attorneys undertook to settle the matter. Propositions were made and rejected, and finally these defendants agreed to give Isaacs fourteen hundred dollars net for the property and the foregoing contract was then executed.
It is an undisputed fact that there were, at the date of the contract, other outstanding tax bills against some of the lots, amounting to about one hundred and fifty dollars, for improvements on Jefferson avenue. The evidence on behalf of defendants, as to the representation made by Mr. Isaacs, is, in substance, as follows:
Judge Rombauer, who represented Skrainka and Vieths, says: "My recollection is that I asked Isaacs if the improvements on Jefferson avenue were paid for, and he said they were; that Skrainka wanted a warranty deed, and Isaacs said he, himself had only a quitclaim deed; that his counsel said he could not properly give a warranty deed, as ...
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