Bank of New Madrid v. Bullock
| Decision Date | 03 April 1944 |
| Docket Number | 38838 |
| Citation | 179 S.W.2d 81,352 Mo. 710 |
| Parties | Bank of New Madrid, a Corporation, v. George Bullock and Belle Bullock, his wife, Appellants, and A. H. Ortman, Respondent |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.
Affirmed.
Merrill Spitler for appellants.
(1) This action is in equity, a bill of interpleader with the issues those of specific performance, of enforcing an agreement made February 19, 1935, with alleged supplemental agreement of August 7, 1935, to convey lands from appellants Bullock to respondent Ortman. Prudential Ins. Co. v Sheehan (Mo. App.), 133 S.W.2d 1060; Taylor v Perkins, 171 Mo.App. 267; Borchers v. Barckers, 158 Mo.App. 267; Smelting Co. v. Lead Works, 152 Mo.App. 158; Duke, Lennon & Co. v. Duke, 93 Mo.App. 244. (2) Specific performance requires much less strength on part of appellants Bullock to resist a bill to perform contract than it does on the part of respondent Ortman to enforce a specific performance. Veth v. Gierth, 92 Mo. 97, 4 S.W. 432; Eisenbies v. Shillington, 159 S.W.2d 641 (5), and cases cited. (3) Specific performance of contract will be denied where such a decree would be inequitable under all the circumstances, and may be denied even where no fraud or mistake appears, where to grant specific performance would inflict such burden or hardship on appellant Bullock as would be inequitable or unjust. Eisenbies v. Shillington, supra; Rockhill Tennis Club v. Volker, 331 Mo. 947, 56 S.W.2d 9; Fredrici v. Union Elec. Co., 336 Mo. 1038, 82 S.W.2d 79; Lemp Hunting v. Hackman, 172 Mo.App. 549, 156 S.W. 791. (4) Purchaser Ortman should not be allowed to remain passive, prepared to affirm a transaction, if the concern should prosper, or repudiate it if it should prove to his advantage. Davis et al. v. Petty, 147 Mo. 374, 49 S.W. 944; Blies v. Prichard, 67 Mo. 186; Brown v. Massey, 138 Mo. 519, 38 S.W. 939. (5) Time of performance was made an essential and material element of the original contract entered into February 19, 1935, which was set in one year. Then the supplemental contract, conceding its execution, provided a reasonable time to perfect title by suit; two notes for one and two years maturity from date recognized that the contract was to be carried into effect before a long length of time, and both were to be carried out as soon as title was perfected, and it could not be approved by Sharp & Baynes named in original contract because they later appeared in contrary roles, and Ortman employed Oliver & Oliver, who now represent him in this case. Ranck v. Wickwire, 255 Mo. 42; Wimer v. Wagner, 323 Mo. 1156. (6) Title to land in question was perfected by the final decision in the case of Bullock v. Gee, controlling in this case, in which the rehearing was overruled March 1, 1941 (347 Mo. 721, 148 S.W.2d 565), which was recognized by this court in Bullock v. Johnson, 166 S.W.2d 573 (). Then it was for respondent Ortman to demand title, and not in December, 1942 (if not in year 1939). Cordia v. Matthes, 130 S.W.2d 597; Bushman v. Barlow, 321 Mo. 1052, 15 S.W.2d 329; In re: Guardianship of Angela McMenamy, 307 Mo. 98; Hutchinson v. Patterson, 226 Mo. 174. (7) Failure of respondent Ortman to demand performance immediately after the decision in the controlling case, Bullock v. Gee, supra, which was known to him and his attorneys in year 1941, constitutes abandonment of his claim. 58 C.J., Sec. 391, p. 1108; Eisenbies v. Shillington (Mo. Sup.), 159 S.W.2d 641. (8) The supplemental agreement of August 7, 1935, contained a description different from the original escrow agreement of February 19, 1935, and constituted an abandonment in the provisions conflicting, the matter taking precedence. Davis v. Culmer, 221 Mo.App. 1037. (9) Respondent Ortman asked specific performance by delivery of deed to him conveying entire section of land, while the supplemental agreement he relies on for the extension of time has corrected description, containing less land, and the court's attempt to correct this has no basis of pleading or contract, and Ortman is not entitled to the relief sought and given on account of this error or mistake of the original escrow agreement. Abbott v. Dunivan, 34 Mo. 148; Eisenbies v. Shillington, 159 S.W.2d 641, 349 Mo. 108.
Oliver & Oliver for respondent.
(1) The controlling facts are simple. They stood out sufficiently clear and definite to convince the trial judge, who saw the original executed documents, saw the witnesses on the stand and heard all the evidence, that judgment should be rendered requiring specific performance. Under such circumstances, the judgment of the Chancellor is to be given great weight and should, in this case, be unquestionably affirmed. Neihaus v. Madden, 348 Mo. 770, 155 S.W.2d 141; Shumate v. Hoefner, 347 Mo. 391, 147 S.W.2d 640; Wrigley v. Wrigley, 345 Mo. 207; Broz v. Hegwood, 349 Mo. 920, 163 S.W.2d 1009; Hunnell v. Zinn, 184 S.W. 1154. (2) When a party makes out a clear case for specific performance and none of the recognized equitable defenses are established, specific performance will be granted. Beheret v. Myers. 240 Mo. 58 Kirkpatrick v. Pease, 202 Mo. 471. (3) Where there is, as has been shown in this case, no fraud, no mistake, no over-reaching of one claimant in an unconscionable manner, no laches nor abandonment on Ortman's part; no impossibility; no inequities; no sharp practice by counsel for either of the litigants, and the agreement is fair on its face, specific performance will be decreed. Now that the title has been quieted, he is entitled to the deed to the land and to specific performance which he at all times has been willing to carry out. Beheret et al. v. Myers et al., 240 Mo. 58; Kirby v. Balke, 306 Mo. 109; Kirkpatrick v. Pease, 202 Mo. 471.
Action for specific performance of the contract of George Bullock to convey to A. H. Ortman, Sec. 24, Twp. 21, R. 11, New Madrid County, Mo. The contract of sale, warranty deed executed by Bullock and wife, draft and two notes covering the purchase price, were delivered to the Bank of New Madrid as escrow agent pending examination and determination of title to the land. Mrs. Bullock was only interested as a wife. Ortman and Bullock disagreed with reference to the matter and in January, 1943, each demanded of the bank the warranty deed. Thereupon the bank, on its petition and by consent of the parties, delivered to the clerk of the court, all of the documents in its possession relating to the transaction and was by the court discharged.
The answers filed by Ortman, Bullock and wife to the bank's petition presented the questions to be determined on the issue of specific performance. The chancellor decreed specific performance.
The above mentioned contract was executed by Ortman and Bullock on Feb. 19, 1935. Therein Bullock agreed to convey the land with a merchantable title to Ortman for $ 6000 within a year, which sum is admitted to have been a fair price for the land at that time. Ortman was authorized to take possession of the land pending a determination of the question of title. He did not do so. Bullock remainded in possession. An examination of the abstract disclosed defects in the title. To quiet the same, Bullock filed suit (Bullock v. Johnson et al.) on April 18, 1935.
On Aug. 7, 1935, the parties executed a supplementary agreement. It reduced the land conveyed to six hundred twenty-five acres. In effect, it stated that because of defects in the title, Bullock would be unable to convey a merchantable title within a year and provided that he should be given a reasonable time within which to quiet the title. It also provided that until Bullock could convey such a title, he "shall" remain in possession of the land, retain the crops grown thereon and pay the taxes and special assessments, if any, against the land. The supplementary agreement was not delivered to the escrow agent.
In Bullock v. Johnson et al., and on Dec. 9, 1935, judgment was entered by default in favor of Bullock quieting the title to the land. On June 7, 1937, by leave of court, E. B. Gee intervened in Bullock v. Johnson et al., under Secs. 1247 and 1249, R.S. Mo. 1939. Under said leave and on Dec. 9, 1937, E. B. Gee and the Farm Industries, Inc. (under the control of Gee) filed motions to set aside and modify the default judgment in Bullock v. Johnson et al. The motions alleged that the land was sold to Bullock under a judgment for taxes; that Gee and Farm...
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