Ash v. Holder

• Decision Date: 31 August 1865
• Citation: 36 Mo. 163
• Court: Missouri Supreme Court
• Parties: GEORGE W. ASH, ADM'R, &C., Respondent, v. JOHN M. HOLDER, Appellant.

36 Mo. 163

GEORGE W. ASH, ADM'R, &C., Respondent,

v.JOHN M. HOLDER, Appellant.

Supreme Court of Missouri.

August Term, 1865.

Appeal from Monroe Circuit Court.

Carr, for appellant.

I. Generally an offer to return the property received is as effectual to rescind the contract as actually returning it. Upon this principle, then, the offer of the appellant to rescind the contract and deliver the possession of the land to the intestate is equivalent to an actual rescission; and if so, then the appellant had the lawful right to buy in the title outstanding in the heirs of Lucy A. Dye, and when he did so, the purchase did not enure to the benefit of the intestate. If the purchase were allowed to enure to the benefit of the intestate, it would be allowing him to take advantage of his own wrong and rewarding him for his dishonesty. (Musson v. Bunot, 1 Denio, 69; Howard v. Cadwallader, 5 Blackf. 225; Chit, on Cont. 750; Price v. Evans, 26 Mo. 30; 11 Mo. 149; 9 Mo. 484.)

II. The petition is fatally defective in not averring that the respondent was ready and willing to perform the contract alleged in said petition and in not offering to perform it, and likewise in not averring that he had good title which he was ready and willing to convey to the appellant upon the payment of the purchase money. The petition does not state facts sufficient to constitute a cause of action in this respect, and hence the motion in arrest of judgment ought to have been sustained. (Bruce v. Tilson. 25 N. Y. p. 198, and authorities there cited; Washington & Turner v. Ogden, 1 Blackf. 450; Pomeroy v. Drury, 14 Barb. 418; Greene v. Reynolds, 2 Johns. 207; 10 Johns. 266.)

III. There is a defect of parties to this suit. The vendor having died, whatever title he had to the land in controversy descended to his heirs, and hence they were necessary parties, so that all the parties in interest might be before the court; and then whenever a decree of sale should be made and a sale made in pursuance of such decree, it would pass the whole title to the purchaser. (Sto. Eq. Pl., § 160; Morgan v. Morgan, 2 Wheat. 299; Perry's Adm'r et al. v. Roberts, 23 Mo. 221; Harrison v. Nixon, 11 Curt. 442; 9 Pet. 483; Carneal v. Banks, 6 Curt. 370; 10 Wheat. 181; Harding et al. v. Handy, 6 Curt. 529; 11 Wheat. 103.)

The decree rendered in this case is erroneous in ordering only the right, title and interest of the appellant in the land in controversy to be sold. It should have ordered the right, title and interest of the intestate to have been sold likewise.

Hall & Oliver, for respondent.

I. The petition is sufficient. This is simply a suit to collect certain notes due plaintiff's intestate, and to subject to sale the interest of defendant in and to certain land, to satisfy the judgment upon the notes. The heirs of plaintiff's intestate had no interest in the subject matter of the suit, nor in the object of the suit; they were not necessary nor proper parties. (Sto. Eq. Pl. § 72, pp. 136-7.)

This is not a suit to enforce specific performance of a contract for the sale of land; but even in a suit for specific performance of such a contract, the heir of vendor is not a necessary party under our statute. (R. C. 1855, pp. 148-9 §§ 32, 42-3-4-5.)

II. It was not necessary for plaintiff to allege in his petition an offer to convey a title in his intestate to the land sold to defendant. The conveyance of the land was not a condition precedent to the payment of the purchase money. (Thompson v. Crutcher, 26 Mo. 321.)

III. The evidence shows that defendant has possession of the land, the sale of which was the consideration of the notes in suit; that he received that possession from the plaintiff's intestate in pursuance of said sale, and that he has never been disturbed in his possession. He cannot keep possession of the land and refuse to pay the purchase money. (Wallace v. Boston, 10 Mo. 662-3; Smith v. Busby, 15 Mo. 392; 2 Sug. on Ven., t. p. 15; 1 id. 262.)

IV. The defendant having purchased in the outstanding title to said land, rendered it impossible for plaintiff's intestate to perform his contract; and said intestate is therefore relieved from its performance. It all cases the promisor is discharged from liability if the promisee do any act which renders it impossible for the former to perform his agreement; and in such case the promisor stands in the same situation as though the performance of the contract had been perfected. (Chit. on Contr., 738.)

V. Defendant by purchasing in the outstanding title, as above stated, limited plaintiff's recovery on covenants in deeds to his intestate to the amount expended by defendant in purchasing said title, and justice requires that his recovering against defendant should be limited to the same sum. (Raw. on Cov., p. 44; Lawless v. Collier, 19 Mo. 480.)

VI. Defendant having received possession of the land as aforesaid, and retained possession of the same, became a trustee for his vendor in buying the adverse title. The title thus purchased enures to the benefit of his vendor, and his vendor can only be compelled to refund or to allow to defendant the amount he paid for the said title. Defendant is not entitled to a rescission of the contract with plaintiff's intestate. (Galloway v. Finley, 12 Pet. 294-5.)

WAGNER, Judge, delivered the opinion of the court.

It is unnecessary to determine the point, extensively discussed in this case, as to whether the respective obligations relied on were in the nature of mutual, concurrent, or independent covenants. In view of the special facts, the question is unimportant. Appellant, by his own act, had precluded the respondent or his intestate from complying with the covenant contained in the title bond, by buying up the outstanding title and vesting it in himself. The material question is, whether a purchaser...