Bales v. Roberts

• Decision Date: 24 May 1905
• Citation: 189 Mo. 49,87 S.W. 914
• Parties: BALES v. ROBERTS.
• Court: Missouri Supreme Court

87 S.W. 914

189 Mo. 49

BALES v. ROBERTS.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

VENDOR AND PURCHASER — CONTRACT FOR EXCHANGE OF LANDS — BREACH — SUIT FOR RESCISSION — EVIDENCE — SUFFICIENCY — ESCROW — WRONGFUL DELIVERY OF DEED BY DEPOSITARY — EFFECT — RECORDATION — ANNULMENT — SPECIFIC PERFORMANCE — PART PERFORMANCE—ELIMINATION OF QUESTIONS.

1. In a suit for rescission of a contract for the exchange of land, where plaintiff's evidence shows him entitled to rescission, the defendant's claim for specific performance is necessarily eliminated from the case.

2. Where the contract sued on at the time of instituting suit to all substantial interests and purposes remained wholly executory, any question of part performance interfering with the granting of relief to plaintiff was also eliminated from the case.

3. Evidence examined, and held insufficient to show an intention on plaintiff's part to repudiate the contract so as to entitle the defendant to take down and record a deed deposited by plaintiff in escrow for delivery only on the consummation of the contract.

4. The evidence was sufficient to show willful and surreptitious breaches of the contract by the defendant entitling the plaintiff to rescission.

5. The grantee in a deed deposited in escrow obtains no title to the land where the depositary delivers prematurely the deed without the consent of the grantor; and hence the recordation of a deed so procured was a cloud on the grantor's title, which equity would remove by annulling the deed.

Appeal from Circuit Court, Vernon County; H. C. Timmonds, Judge.

Suit by Allen D. Bales against C. M. Roberts. From a decree in favor of plaintiff, defendant appeals. Affirmed.

J. B. Johnson, for appellant. M. T. January, for respondent.

LAMM, J.

Bales files his bill in equity against Roberts in such form, if the facts be found true, as to warrant relief (1) by holding for naught Bales' recorded warranty deed conveying certain lands in Vernon county, Mo., to Roberts, and by vesting the title of said land out of Roberts and into Bales, and (2) by declaring a rescission of a certain real estate contract resting partly in writing and partly in parol, whereby Bales swapped his said Missouri land for certain land in Ford county, Kan. Roberts, by answer, admitted some and denied other averments of the bill, and pleaded facts which, if true, warranted the relief of specific performance of said contract. On hearing, a provisional and interlocutory decree was entered awarding specific performance in favor of defendant on terms. In due time the chancellor reopened the matter, heard further argument, and, thus advised, set aside the provisional decree and entered a final decree in favor of plaintiff in effect (1) canceling said deed, and (2) rescinding said contract, and (3) dismissing defendant's cross-bill. Said decree was predicated of the following special finding of facts, embodied in the decree (the pertinency of which appears later in this opinion), viz.: "That defendant contracted to sell the northwest quarter of section 13, and plaintiff intended to buy said quarter section; that under the contract entered into by and between the parties on November 11th the defendant, Roberts, had no right to withdraw Bales' deed from escrow until an abstract of title has been furnished showing good title to said northwest quarter of section 13 in defendant, Roberts; that at the time said Roberts withdrew the Bales deed from escrow he did not own said quarter section. The court therefore finds that defendant committed a breach of the contract in withdrawing said deed; that the breach was committed intentionally and willfully, and for the purpose of obtaining an inequitable and unconscionable advantage over plaintiff; that thereupon plaintiff had a right to and did demand a rescission of said contract; that during the pendency of said contract the conduct of defendant, Roberts, was marked with such acts of unfairness, lack of candor, and fair dealing as to characterize him as one `without clean hands' within the meaning of the maxim of equity. Wherefore it is ordered, adjudged, and decreed," etc. From this decree defendant appeals.

The case made is as follows: Roberts owned certain detached tracts of land in Ford county, Kan., among them the northeast quarter of a certain section 13, and was negotiating for other tracts, among them the southwest quarter and northwest quarter of said section 13. He was promoting the settlement of his country by encouraging immigration from Missouri, and was turning a penny at odd spells by selling Kansas lands to immigrants. With things in this condition, there fell a day in the early fall of 1901 when the course of events found Roberts in said Vernon county, visiting a son-in-law, where, learning that Bales entertained an idea of trading his land for the purpose of increasing his cattle range, he called on him at his home, looked over Bales' lands and certain mules, etc. From this and other interviews it resulted that Bales and his wife went to Ford county, Kan., to examine Roberts' trading properties. In the Missouri interviews prior to this Kansas visit it is agreed on all hands that Roberts with a stick marked out in the dust the lay of his trading lands in section 13. Both sides agree that the northeast quarter was included in the rude diagram, but Bales asserts the northwest quarter was also included, so as to make the offer include the whole north half of section 13, with other tracts, while Roberts insists the northwest quarter was not included, but the southwest quarter was designated, thus showing the quarter sections which it was proposed to trade, instead of lying side by side, cornering with each other. It is also testified by Bales that prior to the ultimate contract Roberts laid claim to certain rather indefinite, but at the same time somewhat tangible, rights in vast pasture lands adjacent to the properties he proposed to put into the trade, and that he (Roberts) was in the present enjoyment of certain dignified financial gains resulting from the usufruct of these pastures, all of which "rights," with gains to accrue, he would set over to Bales. While Roberts admits that pasturing privileges on lands outside of the trade were talked over, yet he insists that he made full disclosures to Bales that the character of his possession was the mere shadowy one of a squatter who from year to year used the perishing grass on nonresidents' land without any lease or license from absent owners, and entirely subject to the owner's whim on discovery. In November, 1901, Bales and his wife went to Ford county, Kan., as said, where Roberts entertained them for a week or thereabouts, showed them over the lands he proposed to trade, pointed out the advantageous conditions of the country then existing and others in nubibus, and indulged in what is known in the books as "dealer's talk"—i. e., such commendatio as furthered the trade, and caused the hope to spring in Bales' breast of a fetching bargain. In these talks the aforesaid "pasture rights" were gone over, Bales on his part reaffirming the same representations alleged by him to have been made by Roberts in Missouri, and Roberts, on his part, affirming frank disclosures of the true state of his "rights" unaccompanied with either suppressio veri or suggestio falsi. The upshot was that on November 11, 1901, the following written memorandum was drawn and signed, evidencing part of the contract:

                                 "Bucklin, Kas., Nov. 11, 1901
                

"Contract made this date between C. M. Roberts and A. D. Bales.

"First: C. M. Roberts, has deposited with the Western Banking Company of Bucklin, Kansas, a deed for certain Ford County, Kansas, lands, in favor of A. D. Bales.

"Second: A. D. Bales, has deposited with said Bank a deed to certain lands in Vernon County, Missouri, in favor of C. M. Roberts.

"Third: C. M. Roberts agrees to accept the deed to the Missouri lands subject to a $3000.00 mortgage, with interest paid to March, 1902.

"Fourth: A. D. Bales agrees to execute a mortgage on the Ford County land for Two Thousand Dollars, in favor of C. M. Roberts, One Thousand to be paid in one year from this date and One Thousand to be paid in two years from this date, with interest at six per cent. per annum or the rate of interest C. M. Roberts has to pay on the Missouri land, whatever that may be.

"Fifth: C. M. Roberts sells to A. D. Bales, March 1, 1902, thirteen horses now on his ranch, and all farming implements, except harnesses and saddles and bridles, also one binder, one gang-plow and one-half interest in the grain-drill on the Thurston farm, two road wagons, one farm wagon, one spring wagon.

"Sixth: A. D. Bales sells to C. M. Roberts, March 1, 1902, sixteen mules coming one year old, and six mules coming two years old, nine head of horses, two farm wagons, one old buggy, one two-seated carriage, also other farming utensils in use on his farm, except harness, saddles and bridles.

"Seventh: Each part agrees to take good care of the stock from now until March 1, 1902, and is not to be responsible for loss of same by natural death.

                  "[Signed]                C. M. Roberts
                                          "A. D. Bales."
                

Simultaneously with the drawing and signing of this partial contract, Bales noticed the talked-over "pasture rights" were not included by the scrivener, and on his demand Roberts executed and delivered to him the following further signed memorandum:

"In connection with our trade made this day it is understood that Mr. A. D. Bales shall have two wind mills and any rights I may have to the big pasture west of the ranch.

                                        C. M. Roberts
                

"Bucklin, Kansas, Nov. 11, 1901."

Bringing forward to this point another phase of the case, it seems Bales' land comprised 320 acres, and was mortgaged for $4,500, and Roberts' land was dealt with as clear of incumbrance. The following parts of the contract,...