Barger v. Healy

• Decision Date: 19 December 1918
• Docket Number: No. 20575.,20575.
• Citation: 276 Mo. 145,207 S.W. 499
• Parties: BARGER v. HEALY.
• Court: Missouri Supreme Court

207 S.W. 499

276 Mo. 145

BARGER v. HEALY.

No. 20575.

Supreme Court of Missouri, in Banc.

December 19, 1918.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by R. Barger against Jeremiah D. Healy. Judgment for plaintiff, and defendant appeals. Reversed, and petition dismissed.

This suit was begun In the circuit court of Iron county by, the plaintiff against the defendant, asking for the specific performance of a written option contract to convey real estate.

The decree was for the plaintiff, and the defendant appealed the cause to this court. The contract is as follows:

"Know all men by these presents that, I, the undersigned Jeremiah D. Healy of the city of St. Louis, in the state of Missouri, for and in consideration of the sum of one hundred ($100.-00) dollars to him in hand paid by R. L. Barger of Ironton, Iron county, Missouri, the receipt of which is hereby acknowledged, do hereby agree to grant and convey unto the said R. L. Barger or assigns, by warranty deed, clear of incumbrances, the following described real estate, situate in the county of Iron and state of Missouri, to wit:

"All my right, title and interest in all the land I own in said county, situated in township 35, range 1 west, and situated in township 35, range 1 east, and situated in township 35, range 2 east, and situated in township 34, range 1 east, in said Iron county, Missouri. Being the same property acquired by me from Edgar R. Wells and Rose Anne Shephard Hand and husband upon the tender and payment, however, by the said R. L. Barger within sixty days from date hereof of the total sum of eleven thousand five hundred ($11,500.00) dollars.

"Payable as follows: One-half to be paid in cash and one-fourth to be paid in three months and one-fourth on or before twelve months, secured by deed of trust for part purchase money, notes bearing 6 per cent. interest and to execute unto the said R. L. Barger, or assigns, a warranty deed in due form of

Jaw to said real estate, upon the payment or otherwise satisfactory adjustment of the price herein agreed upon for said property, and to furnish an abstract of title showing good and clear title thereto at the time I purchased same. Upon the expiration of the time above specified this option may be further extended by written agreement of the undersigned, attached thereto, not to exceed one month's additional time.

"Witness my hand this, the 31st day of December, 1913.

"[Signed] Jeremiah D. Healy. [Seal.]"

This contract was duly acknowledged before a notary public and delivered to the plaintiff.

The petition declares upon the contract, stating that the plaintiff fully performed all the terms thereof, and requested the defendant to convey to him the real estate described in the contract, and further alleged that the defendant refused to execute and deliver a general warranty deed, conveying the property described, but, on the contrary, delivered to plaintiff two quitclaims, wherein defendant excepted out of the lands described in the contract, and reserved for himself, his heirs, and assigns, the mineral rights in and to said land, specifically reserving the right to prospect and develop the same, and further alleging that plaintiff accepted said quitclaim deeds only under protest. The defendant sets up in his answer that the contract sued upon is, and was, not the final repository of the agreement between him and the plaintiff, and sets forth, in substance, that it was at all times understood between him and plaintiff that all the minerals lying beneath the surface of the land sold were to be reserved to defendant, his heirs and assigns. The reply was a general denial.

The plaintiff offered in evidence the contract sued on. D. E. Fletcher testified for the plaintiff in substance as follows: That he represented the plaintiff and conducted the negotiations for the securing of the option contract in controversy with the defendant, Healy; that the option contract sued upon was drafted in the office of the defendant, in the city of St. Louis, and that the handwriting therein was the handwriting of the defendant; that the option contract was prepared by the defendant in his office, and that the same expressed the agreement made by the parties at that time. Fletcher further testified that on the 28th day of February, 1914, in accordance with the option contract, Barger wired the defendant Healy to forward the deeds and deed of trust to the Bank of Arcadia Valley, and that the plaintiff would there complete his contract for the purchase of the lands in suit; that on the 4th day of March the deeds and deed of trust arrived at the Bank of Arcadia Valley, and that Barger and he examined the deeds and deed of trust, and found that the same was not in accordance with the option contract, inasmuch as the deed was in substance a quitclaim deed, and reserved the mineral rights to the defendant and his heirs. Fletcher further stated that 80 acres of the land was omitted from the deed (inasmuch, however, as that defect was subsequently remedied, no further reference will be made to the same). Fletcher stated that thereupon he and Mr. Barger conferred with their attorney, Mr. Damron, relative to the matter, and that at their request Mr. Damron called up the defendant and demanded of him that he execute a warranty deed, and include therein the mineral rights which he had reserved under the deed in controversy; this the defendant refused to do; that in the meantime, the plaintiff, in reliance upon his option contract from the defendant, had agreed to sell the timber upon this land to the Merseal & Allee Tie & Timber Company; he was advised by his attorney, Mr. C. P. Damron, that he would have to accept the deeds tendered by the defendant, and then institute this action to compel defendant to comply with the remainder of the terms of the option contract. The witness further stated that Mr. Barger executed the deed of trust and paid one-half the purchase money due at that time. However, at the time of so doing Barger protested to the Bank of Arcadia Valley, defendant's agent, against the acceptance of the deeds, and stated that the deeds were only accepted under protest and because there was no other relief left. Mr. Fletcher stated that thereafter the notes for which the deed of trust was given as security were fully paid off, and that the purchase price of the land has now been paid in full. He stated, however, that the defendant has refused, and still refuses, to execute a warranty deed covering the lands in suit, and conveying the mineral rights reserved by him under the quitclaim deed.

R. L. Barger, the plaintiff, and C. P. Damron, attorney for the plaintiff, testified, iu so far as their knowledge extended, to substantially the same facts as were testified to by the witness Fletcher.

Thereupon plaintiff offered in evidence the deeds which defendant tendered in alleged performance of this option contract, and also the canceled notes and deed of trust executed by the plaintiff in performance of the contract on his part. Plaintiff also offered the testimony of three disinterested witnesses to the effect that they heard the protests made by plaintiff over the acceptance of the deeds tendered by defendant, and heard plaintiff state that he was only accepting the deeds because of the fact that he had to comply with his contract for the sale of the timber to the Merseal & Allee Tie & Timber Company, and that he did not consider the deeds tendered as a compliance with the contract, and would hold defendant to a strict compliance with the contract.

Mr. Damron also testified that he notified the defendant, Healy, over the long-distance telephone that the deeds were not in compliance with the terms of his option contract, and that plaintiff would hold him to a subsequent compliance with the contract.

Plaintiff also offered in evidence a telegram referred to in the testimony of Mr. Fletcher, as well as a letter from Hope, Green & Seibert to the defendant, under date of August 20th, demanding of the defendant that he comply with his option contract and convey to the plaintiff, Barger, by warranty deed, his entire interest in the premises, including the mineral rights reserved in the deed which he had delivered to the plaintiff.

The defendant's evidence tended to prove the following additional facts, viz.: Upon the arrival of the deed at the bank, plaintiff examined same, and found it to be a special warranty in form, to contain a reservation of mineral rights, and that 80 acres of land had been omitted. Plaintiff had his counsel call defendant at St. Louis over the telephone and informed defendant that the deed was not in compliance with the option, whereupon defendant informed plaintiff's counsel that if they did not care to accept the deed to return the same to him. This deed was accepted by plaintiff, and by him placed of record in the recorder's office for Iron county on the 9th day of March, 1914. Thereafter defendant conveyed the 80 acres in manner and form and with like reservations as set forth in his previous deed, which was accepted by plaintiff and placed of record in the recorder's office for Iron county on the 14th day of March, 1914. Defendant forwarded, with the first deed, a deed of trust, dated the 28th day of February, 1914 securing the deferred payments of the purchase price, which deed was executed and acknowledged by plaintiff on the 9th day of March, 1914, and by him placed of record in the recorder's office for Iron county on said date, which deed of trust secures the payment of the notes mentioned. The last of these notes were paid by plaintiff on March 2, 1915. The deed of trust was on that day presented by plaintiff and canceled by the recorder of deeds of Iron county. This suit was filed on the 26th day of September, 1914. That D. Edgar Fletcher, plaintiff's partner, had at all times an undivided one-half interest in the option contract, and later in the...