Austin v. Shipman

• Decision Date: 06 November 1911
• Citation: Austin v. Shipman, 141 S.W. 425, 160 Mo. App. 206 (Mo. App. 1911)
• Parties: LYMAN A. AUSTIN, Appellant, v. ISAAC SHIPMAN, Respondent
• Court: Missouri Court of Appeals

141 S.W. 425

160 Mo.App. 206

LYMAN A. AUSTIN, Appellant, v. ISAAC SHIPMAN, Respondent

Court of Appeals of Missouri, Springfield

November 6, 1911

Motion for Rehearing Overruled, December 8, 1911.

Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

J. P McCammon for appellant.

(1) The land of Isaac Shipman, original patentee, descended subject to the payment of his debts and until the appointment of an administrator the Statute of Limitations did not begin to run against his debts. Woerner's Law of Administration, sec 401; Ayers Admr. v. Donnell, Ext'r, 57 Mo. 398; Little v. Reid, 75 Mo.App. 398; Stanton v Gibbons, 103 Mo.App. 267. (2) Defendant was obliged to furnish a good title, a merchantable title to appellant. Every purchaser of land has a right to demand a title which shall protect him from anxiety, lest annoying, if not successful suits be brought against him. He should have a title which would enable him not only to hold his land, but to hold it in peace, and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. Waterman Spec. Perf., sec. 412; Mastin v. Grimes, 88 Mo. 478; Fozier v. Graham, 146 Mo. 359. (3) Plaintiff's contract bound defendant to assure to him in fee simple, clear of all encumbrances whatever, by a good and sufficient warranty deed and abstract of title the land purchased. It was not a compliance with its terms to try to assure by oral testimony or ex parte statements. Thompson v. Dickerson, 68 Mo.App. 535; Bruce v. Wolf, 102 Mo.App. 384; Smith v. Hutchison, 61 Mo. 88. (4) Under the laws of this State a purchaser of lands has the right to demand the title which shall protect him from anxiety. He should have a title which would enable him not only to hold his land, but to hold it in peace, and if he wishes to sell it to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. Ives v. Bank, 124 S.W. 23.

R. S. Hogan for respondent.

OPINION

NIXON, P. J.

On the 13th day of November, 1908, the plaintiff, Lyman A. Austin, entered into a written contract with Mullin & Durnell, real estate brokers at Mountain View, in Howell county, Missouri, for the purchase of 160 acres of land owned by the defendant, Isaac Shipman, in said county. The contract contained, among other provisions, the following:

". . . the said party of the first part will convey and assure to the party of the second part, in fee simple, clear of all encumbrances whatever by a good and sufficient warranty deed, and abstract of title, the following lot, piece or parcel of ground, viz., 160 acres, owned by Isaac Shipman, situated in Howell county, Missouri, three miles southwest of Mountain View, said premises to be delivered in as good condition as when this contract is made, and the party of the second part hereby agrees to pay said party of the first part the sum of $ 3,700 in the manner following, $ 200 cash in hand paid, the receipt whereof is acknowledged, and the balance $ 3,500 to be paid by assuming a mortgage now against land of $ 1,480 and the balance $ 2,020 in sixty days from date, with interest at the rate of--per cent. per annum, and to pay all taxes, assessments or impositions upon said land subsequent to the year 1908 . . ."

The plaintiff, after entering into this agreement and paying the $ 200, returned to his home at Malta, Montana. An abstract of title to the land in question was sent to him, and, because his attorney in Montana advised him that it did not show a marketable title, he refused to consummate the deal. This suit was brought by him on June 7, 1910, in the circuit court of Howell county for the purpose of recovering the $ 200, his theory being, as stated in the petition, "that defendant agreed to furnish an abstract of title to said land showing the title thereto well vested in defendant clear of all encumbrances, and to convey the same to plaintiff by a good and sufficient warranty deed upon which plaintiff should pay the remainder of the purchase price," and that this agreement was breached by defendant in failing to furnish such an abstract of title. The issue was made by a general denial. The case was tried without a jury and judgment went for the defendant. Plaintiff has appealed.

The first conveyance shown by the abstract of title sent to plaintiff was to one Isaac Shipman, by patent. (This man is not the defendant.) Immediately following this conveyance are shown conveyances of this land or interests therein as follows: (1) Warranty deed from W. A. Norris and Zilpha J. Norris, his wife, to D. F. Shipman and W. I. Shipman. (2) Quit-claim deed from Charity C. McNiel and G. L. McNiel, her husband, to said grantees. (3) Quit-claim deed from D. F. Shipman and Mary J. F. Shipman, his wife, to W. I. Shipman (this is the defendant herein).

It seems that attached to the abstract of title was an affidavit of Zilpha J. Norris which purported to have been filed for record in the office of the recorder of deeds of Howell county, Missouri, on November 20, 1908 (seven days after the date of the contract in question), wherein she deposed that Isaac Shipman, the entry-man, died in 1863, intestate, and that he left as his only heirs at law, Zilpha J. Norris (formerly Zilpha J. Shipman), Charity C. McNiel (formerly Charity C. Shipman), D. F. Shipman, and Isaac Shipman; and that Martha A. Shipman, widow of the entryman, died on April 5, 1901.

The evidence in the case consisted largely of the correspondence which ensued upon plaintiff's refusal to accept the title as shown by the abstract. Plaintiff's attorney gave him a written opinion on December 1, 1908, concerning alleged defects in the record title as shown by the abstract furnished. Among other objections was the absence of anything in the abstract to show by what right the conveyances mentioned above (immediately following the patent to the entryman) were made, his position being that the recorded affidavit of Zilpha J. Norris was no part of the record title and had no right to be on the records of Howell county, and that so far as the abstract went, the title would appear to still be in the entry-man; also that the title was dangerous because it appeared from said affidavit that the entryman died in 1863, intestate, and no administration of his estate is shown and that deceased may have owed debts.

On January 7, 1909, plaintiff was notified by letter that defendant has deposited a warranty deed and the abstract in the Bank of Mountain View, to be turned over to plaintiff upon compliance with his agreement.

At the close of the evidence, the plaintiff requested and the court refused to give the following declarations of law:

"1. The court declares the law to be that under the evidence the verdict and judgment must be for the plaintiff for the amount sued for with interest from the date of payment."

"2. The court declares the law to be that the abstract of title offered in evidence did not show a perfect title free and clear of all encumbrance nor such a title as defendant could compel the plaintiff to accept."

"3. That since the abstract of title offered in evidence did not show any administration of the estate of Isaac Shipman, the father of defendant, the title of the land contracted for by plaintiff so shown was and remained subject to the debts of said Isaac Shipman, and was not a merchantable title."

"4. There having been no administration of the estate of Isaac Shipman, or none shown by the abstract of title to the land in question, the said title so shown was not a merchantable title nor such a title as defendant was obliged to furnish plaintiff."

No declarations of law were given.

The whole controversy on this appeal turns upon the proper construction of the contract entered into by and between the parties. The respondent has not favored us with a brief but his contention would be that he was merely required to make good title and not to furnish an abstract which showed good title. The material clause in the contract is, "the said party of the first part will convey and assure to the party of the second part, in fee simple, clear of all encumbrances whatever by a good and sufficient warranty deed, and abstract of title, the following lot," etc. This evidently means that the grantor will assure a fee simple title--a title clear of all encumbrances--(excepting of course, the deed of trust which the grantee was to assume) and, having first furnished an abstract showing such a title, convey by a good and sufficient warranty deed. He could not convey by an abstract of title; nor could he assure a fee simple title clear of all encumbrances by a good and sufficient warranty deed. Therefore, in order to give any meaning whatever to the words, "and abstract of title," it must be held that the intention was to assure a clear title by an abstract of the record transfers. That this was the construction placed upon the contract by both parties is amply evidenced by the subsequent events. The agreement was entered into on November 13, 1908. On November 20, 1908, there was filed for record in the office of the recorder of deeds of Howell county, Missouri, the affidavit of which a copy was attached to the abstract of title. Defendant was evidently then preparing to send the abstract for examination. On December 1, 1908, we find by his written opinion of that date that plaintiff's Montana lawyer has received and examined the abstract. On December 10, 1908, this abstract has been returned by plaintiff to defendant's agents, with the objections, for on that date defendant's attorney at West Plains, Missouri, writes to defendant that the objections are unfounded, and on...