Hubbard v. Kansas City Stained Glass Works & Sign Company

• Decision Date: 30 March 1905
• Citation: 86 S.W. 82,188 Mo. 18
• Parties: HUBBARD et al., Appellants, v. KANSAS CITY STAINED GLASS WORKS & SIGN COMPANY et al
• Court: Missouri Supreme Court

86 S.W. 82

188 Mo. 18

HUBBARD et al., Appellants, v. KANSAS CITY STAINED GLASS WORKS & SIGN COMPANY et al

Supreme Court of Missouri, Second Division

March 30, 1905

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

English & English for appellants.

(1) There was no authority in Summers to make this title bond. His duty was "to grant, bargain, sell and convey" and he could make no instrument that did not include all of these powers. It gave him no authority to bind Hubbard to convey. This was not a contract to convey, under the power of attorney, but an option which he could not give. Glass v Rowe, 103 Mo. 538. Even if it gave the power to make a contract, and this could be construed as such, it was not a reasonable contract. He could not cut Hubbard's property up into useless slices, as he attempted to do. He must make such contract as would give to Hubbard some rights. In other words, he must make a reasonable contract. To bind Hubbard alone, would be beyond his authority. He must make it with one capable of contracting, and not with a married woman, who would not be bound by her contract, and against whom a contract could not be enforced. He must make such a contract and with such party that it could be enforced in favor of his principal. He can only make a contract mutually binding his principal and the party with whom he contracts. 1 Am. and Eng. Ency. Law, 942; Evans on Agency, 166; Glass v Rowe, 103 Mo. 538; Elwell v. Shaw, 16 Mass. 42; Wells v. Evans, 20 Wend. 251; Tippets v Walker, 4 Mass. 595; Sheldon v. Dunlap, 1 Harrison 245; Strohucker v. Bank, 8 Watts 188; Spensor v. Field, 10 Wend. 87; Bayer v. Miller, 4 Wash. 280. This title bond was a unilateral contract and could not be enforced. There is nothing in the contract that compels the vendee to purchase, and therefore it can not be enforced. Sugden on Vendors, p. 217; Pomeroy on Specific Performance, p. 58; Mastin v. Halley, 61 Mo. 196. (2) Taking the recitals in the bond to be true, it was a verbal agreement that Mrs. Toler had agreed to pay $ 400 after five years, it recites a void agreement, because it is not to be performed in a year. Tyler on Ejectment, 554. Maughs, if he entered under Toler, could not by parol evidence connect his title to Toler's. Wells v. Evans, 20 Wend. 251. He could get no right except such as Toler had. He had by his contract with Toler no right to possession. The actual occupancy he abandoned. Neef v. Seely, 49 Mo. 215; Green v. Covilland, 10 Cal. 309; sec. 5, Stat. Frauds and Perjuries; Wood on Stat. Frauds, sec. 386. (3) It is claimed by the defendants that the interest which they claim G. M. B. Maughs received from Toler was sold on execution in the case of Canole v. Smith et al., and that, under said execution sale, said property was purchased by Miller. Maughs had no vendible interest. Summers' bond to Toler did not bind Toler to pay. She was a married woman and could not be bound. There is no evidence that she paid anything to Hubbard, or that Maughs paid anything, or that possession was ever given to either by Hubbard under that bond. It did not provide for such possession. Toler had no interest that could have been sold on execution, and by assignment of the title bond (had it been valid) she gave nothing to Maughs that could have been sold on execution. Priest v. Robinson, 16 Mo. 129; Quell v. Hamilton, 81 Mo. 444; Anthony v. Rogers, 17 Mo. 397; Hart v. Logan, 49 Mo. 50; Neef v. Seely, 49 Mo. 209; Block v. Morrison, 112 Mo. 343; McIlvane v. Smith, 42 Mo. 55; Rogers v. Cary, 46 Mo. 337. (4) Claim of entry under title bond is not hostile. "A purchaser under an executory contract can not set up adverse possession until he has fully performed his contract and is entitled to conveyance." Tyler on Ejectment, 924; Jackson v. Smith, 7 Cow. 717; Brooman v. Shepard, 14 Barb. 441. "A bond for conveyance does not constitute color of title under which party can claim adverse possession against his vendor." Osterman v. Baldwin, 6 Wall. 116; Dunlap v. Dougherty, 20 Ill. 404; Rigor v. Tracy, 62 Ill. 507; Hardin v. Crate, 78 Ill. 533; Ridgway v. Holliday, 59 Mo. 453; Draper v. Shoot, 25 Mo. 204. "Possession for one hundred years is no bar." Cole v. Roe, 39 Mo. 410. "Vendor may have ejectment against the purchaser when he fails or refuses to comply with the contract." Enc. of Pleading & Practice, 319; Debernardi v. McElroy, 110 Mo. 656; Burnett v. Caldwell, 9 Wall. 290; Gibbs v. Sutton, 48 Mo. 237; Fulkerson v. Brownlee, 69 Mo. 371; Roe v. Perkins, 98 Mo. 253. "An offer to purchase land by a party in possession is such a recognition of title as will bar the defense of adverse possession." Tyler on Ejec., 921; Jackson v. Brittian, 4 Wend. 507; Jackson v. Cunaon, 2 John. 353; Liggett v. Morgan, 98 Mo. 39. By accepting a deed from the life tenant, Miller and his grantees are estopped from denying the title of the remaindermen, and can not claim adverse possession against them. Keith v. Keith, 80 Mo. 125; Salmon v. Davis, 29 Mo. 176. But Maughs had surrendered and could not have intended to hold adversely; the continuity was broken. 1 Am. and Eng. Ency. Law (2 Ed.), pp. 1, 841; Hickman v. Link, 116 Mo. 123.

Powell & Powell and Lathrop, Morrow, Fox & Moore for respondents.

(1) This sale by Hubbard to Toler, the delivery of possession the erection of a house by Toler thereon, and the subsequent payment of the purchase-money and interest to William Holmes, the administrator of Hubbard, will defeat a recovery by these plaintiffs, even had no deed been made by the administrator at all, as even a verbal sale, delivery of possession to the purchaser and payment of the purchase-money will defeat a recovery in ejectment. Williams v. Mitchell, 112 Mo. 313; Harris v. Vineyard, 42 Mo. 568. If the purchasemoney has not been paid and an action in ejectment is brought, the purchaser will not be ousted but will be allowed to pay even after suit brought, and if he does so plaintiff could not recover. Fulkerson v. Brownlee, 69 Mo. 371. The purchaser in this case, Toler, placed valuable improvements on this land by the erection of a building, and the rights of their grantees will be protected. Dickerson v. Chrisman, 28 Mo. 134; Alexander v. Alexander, 150 Mo. 579. (2) The real estate having been paid for in full to the representative and administrator of Chester Hubbard's estate, will preclude plaintiffs from a recovery. Williams v. Mitchell, 112 Mo. 313; Fulkerson v. Brownlee, 69 Mo. 371. While this contract of sale to Toler was in the form of a title bond, yet it is also good as a contract of sale, whether the attorney in fact had or had not the power to enter into a contract in the form of a title bond, and as a contract of sale it will be enforced. Vanada v. Hopkins, 1 J. J. Marsh. 292; Lyon v. Pollock, 99 U.S. 668; Jones v. Marks, 47 Cal. 243. (3) Possession was delivered, and the Statute of Frauds has no bearing on the case. If she or her grantees retained the land they had to pay for it. (4) This was an executed contract. A seller, when he sells and puts a party in possession, has so performed that he may recover the purchasemoney, and there is in effect a vendor's lien for the same against the land bought. (5) There was no abandonment by Toler or Maughs. The breaks, if any, by Maughs during the war were because he was a Southern man and in the Confederate army, and the Federal troops and Federal authorities were in possession of his property. This interference by Federal authority is no evidence of an abandonment. Williams v. Mitchell, 112 Mo. 300; Hamilton v. Boggess, 63 Mo. 246. (6) When a contract of sale is made, the interest of the vendor is personalty so as to pass to his personal representative, and if the sale be a verbal sale and possession is delivered the balance of the purchase-money is personal property, and this is so whether the contract of sale be verbal, and possession delivered, or in writing, and in either event the balance of the purchase-money, under either a verbal contract or written contract, is personal property. Moore v. Burrus, 34 Barb. 173; Schroeppel v. Hopper, 40 Barb. 425; Skinner v. Newberry, 51 Ill. 203; Fuller v. Bradley, 160 Ill. 55; Sutter's Heirs v. Long, 25 Pa. 466; Rose v. Perkins, 98 Mo. 258. (7) The note for the purchase-money matured prior to the death of Hubbard and this started the Statute of Limitations running, and the obligation would be barred even had the note not been paid. Williams v. Mitchell, 112 Mo. 311. An action for the balance of purchase-money to enforce a vendor's lien must be brought within ten years. Zoll v. Carnahan, 83 Mo. 41. After the lapse of twenty years a debt is barred, and this is so at common law, independent of and unaffected by the Statute of Limitations. Carr v. Dings, 54 Mo. 95; Williams v. Mitchell, 112 Mo. 311. (8) Possession under a title bond for the full period of limitation would bar judgment and is a good defense by heirs, even though they be remaindermen and had no right to sue until the Statute of Limitations had expired, because the title bond was the act of their ancestor before his death. Bozeman v. Browning, 31 Ark. 378. (9) Maughs and Toler had vendible interest in this property and the assignment from Toler to Maughs, and delivery of possession, and the judgment, execution, levy and sale against Maughs, carried all their interest. Matney v. Graham, 59 Mo. 192; Rosenberger v. Jones, 118 Mo. 559. (10) This sheriff's deed is not open to collateral attack, and carries the interest of Maughs to Miller. Shea v. Shea, 154 Mo. 607; Hardin v. Lee, 51 Mo. 244; Houck v. Cross, 67 Mo. 155; Curd v. Lackland, 49 Mo. 451; Reed v. Austin, 9 Mo. 722. (11) A stranger can not attack such sheriff's deed either in a collateral or in a direct proceeding. Hardin v. Lee, 51...