Bachman v. H. R. Ennis Real Estate And Investment Company
| Decision Date | 24 June 1918 |
| Citation | 204 S.W. 1115,199 Mo.App. 674 |
| Parties | JOACHIN A. BACHMAN, Respondent, v. H. R. ENNIS REAL ESTATE and INVESTMENT COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Daniel E. Bird, Judge.
AFFIRMED.
Judgment affirmed.
Gage Ladd & Small for the respondents.
Milton Schwind for the appellant.
On the 9th day of August, 1915, plaintiff and one Paris W. Lindsay entered into a contract wherein the former agreed to sell to the latter, for the price and sum of eighteen thousand ($ 18,000) dollars, real estate located in Kansas City Missouri. The property was to be conveyed subject to a deed of trust securing thirteen thousand ($ 13,000) dollars, which the buyer agreed to assume as a part of the purchase price, and the balance, five thousand ($ 5,000) dollars, the buyer agreed to pay in cash. The seller agreed to furnish within ten days from the date of the contract, at the office of this defendant, a complete abstract of title to the property and the buyer was to have ten days thereafter for examination of the abstract and to report in writing to the seller any defect in the title. If the title was defective the seller agreed to have the same rectified within a reasonable time, not to exceed sixty days from the date of the written notice thereof, and if the seller had a good title to the property, or within the time specified for that purpose remedied any defect therein and thereby made such title good, he was to deliver to the purchaser or to his order a good and sufficient warranty deed conveying the property. The contract recited that the purchaser had paid as earnest money five hundred ($ 500) dollars, to be applied upon the purchase price of the property, which had been deposited with this defendant. The contract further provided that upon delivery of the deed or tender thereof, if the purchaser failed to comply promptly with the terms of the contract by not paying the remainder of the purchase price, the earnest money deposited should be forfeited by the purchaser and upon such forfeiture the contract should in other respects become null and void at the option of the seller.
The seller delivered his abstract of title. The buyer found two objections to the title that are now insisted upon as valid ones. The seller thereafter claimed that he had met these objections and showed a good title and demanded that the buyer consummate the deal. (Plaintiff tendering the deed.) The buyer refused and this suit was brought by the seller against this defendant, who was the stakeholder of said earnest money of five hundred ($ 500) dollars, for that sum, plaintiff claiming that by his contract the purchaser had refused to take the property which he was under obligation to do. The case was tried without the aid of a jury. Judgment was rendered in favor of the plaintiff and defendant has appealed.
The first objection made to the title was based upon the following facts: On March 9, 1880, Eliza J. Stall was the owner of the property and on that day she and her husband conveyed it to Abbie M. Winner by a warranty deed. The acknowledgment taken upon the same day by a notary public recited that Eliza J. Stall and Cyrus G. Stall, her husband, acknowledged the deed as their voluntary act, "and the said Eliza J. Stall, being by me first made acquainted with the contents of said instrument, upon an examination separate and apart from her husband, acknowledged that she executed the same and relinquished her dower in the real estate therein mentioned, fully, without fear, compulsion or undue influence of her said husband."
It is defendant's contention that by reason of that part of the acknowledgment above quoted the deed was not effectual to convey the fee in the land, citing Hendricks v. Musgrove, 183 Mo. 300, 81 S.W. 1265. In the case cited the land involved was owned by Ludwell Musgrove. He died leaving a widow and six children. The widow (as the statute was at that time) took the fee in the homestead. But she and the children thought she had a life estate only, and that the children had the fee, subject to her life estate. In this belief one of the children (Gilbert Musgrove) bought his sister's (Mrs. Mary F. Hendricks) interest in the land, and she and her husband attempted to convey it to him by warranty deed. Afterwards the widow Musgrove died and thereby the fee, in fact, then descended to the children, though they and their mother thought they already had the fee by descent at the death of their father, subject to the mother's supposed life estate. So, when Mrs. Hendricks (with her husband) made the deed to her brother Gilbert for one-fifth interest, she, at that time, had no interest and did not have until her mother afterwards died when she, as one of her mother's heirs, for the first time, became an owner in fee of a one-fifth interest. So the question arose whether this deed to her brother conveyed her after acquired title which she got by descent from her mother. It was held that on account of her defective acknowledgment to the deed it did not. In speaking of this branch of the case the court said:
The acknowledgment itself is not set out in the opinion and we have only to look to the language used by the court as a guide to what its terms were. The court says that her acknowledgment was "only as wife" and that it was confined to a release of her dower and did not embrace an ownership of the land. The conclusion that such an acknowledgment to a deed of the wife's fee was not sufficient is manifestly correct. If we interpret that acknowledgment as desired by defendant in this case, it would be in direct conflict with a line of decisions which long ago became a rule of property in this State. In McDaniel v. Priest, 12 Mo. 544, 545, it was held that the insertion of a clause relinquishing dower in a deed, the intention of which was to convey the fee simple title, rendered the conveyance inoperative. This was in 1849.
But in Chauvin v. Wagner, 18 Mo. 531, 546, McDaniel v. Priest was overruled, and it was held that the language relating to the relinquishment of dower was "merely superfluous and does not vitiate." The deed of a married woman thus acknowledged was held to pass her title to the grantee. This was in 1853.
In 1854 Delassus v. Poston, 19 Mo. 425, 431, followed and approved Chauvin v. Wagner.
In 1855, in Perkins v. Carter, 20 Mo. 465, the question was before the court again, and it was said that the matter was "settled" in Chauvin v. Wagner, and that it made no difference if there was no recitation in the deed that it was the wife's land.
In 1856, in Chauvin v. Lownes, 23 Mo. 223, Chauvin v. Wagner was again approved and followed.
In 1873, in Miller v. Powell, 53 Mo. 252, the court said: "If the only defect in the certificate of acknowledgment was that it included a clause relinquishing dower, under repeated decisions of this court, the acknowledgment was sufficient to carry the wife's fee in the land." The court further said that the doctrine of Chauvin v. Wagner "must be considered settled as a rule of property in this State."
Again in 1874, in Siemers v. Kleeburg, 56 Mo. 196, 199, the same point being raised, the court said: [Citing Chauvin v. Wagner, supra.]
In 1879, in Thornton v. National Exchange Bank, 71 Mo. 221, 231, the doctrine of Chauvin v. Wagner was again approved.
In 1883, in Burnett v. McCluey, 78 Mo. 676, 688, the foregoing cases were again followed. As already stated the acknowledgment that is objected to in the case at bar was taken March 9, 1880.
The...
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