Aker v. Lipscomb

• Decision Date: 31 July 1923
• Citation: 253 S.W. 995,300 Mo. 303
• Parties: CARL R. AKER v. JOHN H. LIPSCOMB, Appellant
• Court: Missouri Supreme Court

253 S.W. 995

300 Mo. 303

CARL R. AKER v. JOHN H. LIPSCOMB, Appellant

Supreme Court of Missouri, First Division

July 31, 1923

Appeal from Jackson Circuit Court. -- Hon. Samuel A. Dew, Judge.

Affirmed.

Joseph S. Rust for appellant.

(1) A deed in which the land is described as the east half of the southeast half of Section 20, is good as a conveyance of the east half of the southeast quarter of Section 20. Secs. 4137, 4139, U.S. Stats. (Barnes Federal Code) 946; Sec. 8057, R. S 1909; 13 Cyc. 605; An. Gres Boom Co. v. Whitney, 26 Mich. 42; Owen v. Henderson, 16 Wash. 39; Dart v. Barber, 32 Mich. 267; Grady v. Casey, 93 Mo 595. (2) It being admitted that Richard Merritt owned the land in controversy, that he died in 1840 leaving only six children, and that their names were Elizabeth, Malvina Washington, Eliza, Richard and Frances, a deed by Mary F. Dillon and husband, executed in 1857, in which she describes herself as a child and heir of Richard R. Merritt, and recites that she is conveying the interest in the land which she inherited from Richard R. Merritt will be presumed to convey the Frances Merritt interest, and especially after such a lapse of time and where the land is valuable, has been fenced and in adverse occupancy for forty-five years. (3) In view of the value of the twenty-eight acres in controversy, the length of time it has been fenced and occupied adversely, and the number of times it has been conveyed, a deed from Elizabeth Merritt will now be presumed, as would also, if necessary, one from Frances Merritt. 2 C. J. 288; Glasgow v. Mo. Car Co., 229 Mo. 585; Brooks v. Roberts, 220 S.W. 11; Brinkley v. Forsyth, 66 Mo. 175; Dessaunier v. Murphy, 22 Mo. 95; Brown v. Oldham, 123 Mo. 621; Newman v. Studley, 5 Mo. 291; McNair v. Hunt, 5 Mo. 300; Blair v. Maries, 27 Mo. 579. (4) Under the evidence in this case Elizabeth Neely, formerly Merritt, and Frances Merritt are presumed to have been dead since before the beginning of the forty-five years adverse possession of defendant and those under whom he claims. R. S. 1899, sec. 6340; 17 C. J. 116; Johnson v. Johnson, 170 Mo. 34; Walsh v. Met. Ins. Co., 162 Mo.App. 546; Wheelock v. Overshiner, 110 Mo. 100; Flood v. Growney, 126 Mo. 262; Gilroy v. Brady, 195 Mo. 205; Chapman v. Kullman, 191 Mo. 237. The statutory presumption of death does not exclude the common-law presumption. Dickens v. Miller, 12 Mo.App. 413; Winter v. Dodge, 96 Mo.App. 1; Biegler v. Legion of Honor, 57 Mo.App. 419; Allen v. Tyrus, 2 Wash. C. C. 475; Thomas v. School, 7 Gill & J. 385; Innes v. Campbell, 1 Rawle (Pa.) 373; Louisville Bank v. Public School Tr., 83 Ky. 219; In re Buck's Estate, 220 S.W. 716; Cobb v. Royal Neighbors, 219 S.W. 118; Walsh v. Ins. Co., 192 Mo.App. 546. (5) As the contract did not require that the abstract should show a good record title, Lipscomb had a right to have a decree of specific performance if he furnished an abstract of all there was of record, and his evidence showed a good title under the Statute of Limitations. Aker might have contracted for an abstract showing a record title, but he did not. Scannell v. Amer. Soda Co., 161 Mo. 618; Mitchener v. Holemes, 117 Mo. 185; Wieman v. Steffens, 186 Mo. 591; Danzer v. Moerschel, 214 S.W. 849; Brooks v. Roberts, 281 Mo. 561; Peper v. Union Trust Co., 281 Mo. 562; Real Estate Co. v. Megaree, 280 Mo. 41. (6) Specific performance of a contract to sell land will be decreed even though the title fails as to a small part of the tract, provided that part is not essential to the use of the tract as a whole, the court abating of the purchase price according to the value of the part so failing as to title. Key v. Jennings, 66 Mo. 356; Hart v. Handlin, 43 Mo. 171; Stoddard v. Smith, 5 Binney (Pa.) 355; Towner v. Tickner, 112 Ill. 217; Fowley v. Crow, 37 Md. 51; 39 Cyc. 1408. (7) The court erred in refusing to admit and in striking out evidence offered by defendant tending to show adverse possession and title by limitations.

Denny Simrall and James S. Simrall for respondent.

(1) A deed in which the land is described as the east half of the southeast half of Section 20 does not convey the east half of the southeast quarter of Section 20. (2) Where Richard Merritt dies seized and possessed of certain land and the probate proceedings named Elizabeth, Malvina, Washington, Eliza, Richard, and Frances Merritt as his children, a deed from one Mary F. Dillon and husband did not convey the interest of Frances Merritt, the identity of Mary F. Dillon and Frances Merritt not being established either by the deed or the abstract of title; and the interest of Frances Merritt is outstanding; and the title to the land as shown by the abstract is defective. Ives v. Kimlin, 140 Mo.App. 293. (3) The abstract shows no conveyance by Elizabeth Neeley of her interest in the land, and her interest is outstanding, and title as shown by the abstract is defective. (4) The vendor was bound to furnish the kind of a title he agreed to furnish, to-wit, a good title, and show the same by a complete abstract of title; and in failing and refusing to do so, he breached the contract, and the vendee was entitled to rescind and have returned his earnest money. Kling v. Realty Co., 166 Mo.App. 190; Danzer v. Maerschel, 214 S.W. 849; 39 Cyc. 1416, 1518; Wieman v. Steffin, 186 Mo.App. 584; St. Clair v. Hellwig, 173 Mo.App. 660; Austin v. Shipman, 160 Mo.App. 206; Bruce v. Woolf, 102 Mo.App. 384; Thompson v. Dickerson, 68 Mo.App. 535; Rank v. Wickwire, 255 Mo. 42. (5) The vendor, having breached his part of the contract, cannot compel vendee to perform his part of the contract. Rank v. Wickwire, 255 Mo. 42; Rozier v. Graham, 146 Mo. 352; 36 Cyc. 632-F. (6) The vendee cannot be compelled to accept land, title to part of which is good and part defective. He is entitled to all he bargained for. 39 Cyc. 1508; Hill v. Rich Hill Coal Co., 119 Mo. 9; Barthel v. Engle, 261 Mo. 307; Pomeroy on Contracts, pp. 421, 422, sec. 347. (7) The vendor cannot defeat suit to recover the purchase money by offer of title at the trial. 39 Cyc. 2056; Austin v. Shipman, 160 Mo.App. 206.

OPINION

GRAVES, P. J.

Plaintiff contracted with defendant to purchase of him some 526 acres of land in Lafayette County, Missouri. The contract was in writing, and upon the execution thereof the plaintiff paid the defendant $ 2,000 under the terms of the contract. Omitting the description of the land and other portions of the contract not in issue in this suit, we have the following as the material portions of the contract.

Plaintiff claims that defendant failed to perfect the title within the time stated, although the plaintiff, through his counsel, pointed out the defects. The action is to recover the $ 2,000 paid to defendant upon the execution of the contract:

"This contract, made and entered into this 22nd day of January 1920, by and between John H. Lipscomb, of Jackson County, Missouri, the seller, and Carl R. Aker, of Clay County, Missouri, the buyer, witnesseth:

"That seller has sold and agrees to convey as herein provided the following described real estate in Lafayette County, Missouri, to-wit:

"All in Township Forty-nine (49), Range Twenty-five (25), Lafayette County, Missouri, containing in all five hundred and twenty-six acres (526), more or less, for the price and sum of $ 50,750 to be paid by the buyer as follows: $ 2,000 at the signing of this contract, the receipt whereof is hereby acknowledged by the seller as part of the consideration of the sale, the balance whereof is to be paid in the following manner, to-wit: $ 15,000 cash on delivery of deed as herein provided. The purchaser assumes as part of the purchase price three notes aggregating $ 2,000 with the interest thereon which will have accrued to March 1, 1920, in all $ 21,525 and for the balance of purchase price gives his note for $ 12,225 secured by second deed of trust on the property with interest at six per cent per annum payable annually. The three first deeds of trust and the second deed of trust all maturing on October 1, 1923, and all bearing six per cent interest payable annually. . . .

"The seller . . . shall, within ten days from the date hereof, deliver to the buyer or at the office of James S. Simrall at Liberty, Missouri, a complete abstract of title to said property from the United States Government to this date with certificate by competent abstracters as to taxes, judgments, and mechanics' liens affecting said property. The buyer shall have fifteen days after such delivery of abstracts to examine the same.

"If the title be good, the seller shall deliver to buyer at seller's office a general warranty deed, properly executed and conveying said property free and clear from all liens and encumbrances whatsoever, except as herein provided; the buyer shall then and there pay the balance, if any, of said cash payment, and deliver to the seller the note and deed of trust, if any, hereinbefore provided for, and furnish the seller with insurance policy containing loss clause payable to the seller as interest may appear; the buyer to accept assignment of insurance now in force, paying therefor the unearned value prorated at present current rate.

"If the title is defective, the buyer shall specify the objections in writing to be delivered to the seller at his office in Kansas City, Missouri, within fifteen days after such delivery of the contract; the seller shall have the defects rectified within thirty days from date of delivery of such objections, but in case such defects in the title cannot be rectified within that time, this contract shall be null and void, and the money deposited as aforesaid shall be returned to the buyer and the abstract returned to the seller.

"If the seller has kept his part of this contract, by...