Bassett v. O'Brien

• Decision Date: 09 May 1899
• Citation: 51 S.W. 107,149 Mo. 381
• Parties: BASSETT v. O'BRIEN et al.
• Court: Missouri Supreme Court

51 S.W. 107

149 Mo. 381

BASSETT v. O'BRIEN et al.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

ESTATES — LEGAL AND EQUITABLE TITLE — MERGER.

Husband and wife executed a deed of trust on the latter's land to secure a loan from the guardian of an estate of their children, which was foreclosed after the wife's death. The purchaser sold to another, who attempted a rescission because of failure of title, claiming that on the wife's death, of which he had no knowledge, the mortgage merged into the fee inherited by the children. Held, that his claim was untenable, since the legal title was in the trustee on condition broken, and the equitable title in the children, and a legal estate never merges into an equitable one.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Harry D. Bassett against William A. O'Brien and another to rescind a conveyance of land. Judgment for defendants, and plaintiff appeals. Affirmed.

James F. Pitt, for appellant. Benjamin Phillip, for respondents.

GANTT, P. J.

This is an appeal from a final judgment sustaining a demurrer to the petition. The petition is in these words: "Plaintiff states that on the 4th day of May, 1896, defendant O'Brien, claiming to own and intending to convey the fee in the premises hereinafter described, executed and delivered to plaintiff a general warranty deed of that date, by which he, by the terms thereof, purported to grant, bargain, and sell and convey to plaintiff, his heirs and assigns, lots 1 and 2, in block 54, of St. Joseph Extension addition, an addition to the city of St. Joseph, Buchanan county, Missouri, in consideration of the sum of $2,000, and that defendant covenanted expressly in said deed that he had good right to convey; that said premises were free of incumbrances done or suffered by him, or those under whom he claimed, and that he would warrant and defend the title to the same; that plaintiff, intending to purchase the fee in said premises, and believing that he would obtain the same, paid said consideration, as hereinafter stated. And plaintiff says that there were breaches of said covenants implied and expressed in said deed, in this, to wit: That at the date of said deed said defendant O'Brien had no right to convey said premises, and was not at that time, nor has he since become, seised or possessed of any estate whatsoever in said lands; that plaintiff has paid in cash upon said consideration the sum of four hundred dollars. And, further, plaintiff says that on the 21st day of May, 1889, the title to the premises aforesaid was in Susan Thornton; that said Susan died on the ____ day of January, 1890, leaving, as her children and heirs, Reuben O., Hanna M., Phœbe, and Lulu Thornton, all minors, and children by her husband, Charles A. Thornton, who also survived her; that, at the time of the death of the said Susan, James M. Hall was the duly appointed and qualified guardian and curator of said children, and continued in office until after the trustee's sale hereinafter mentioned; that on the 20th day of June, 1889, Susan Thornton and Charles A. Thornton, her husband, executed and delivered to said James M. Hall a deed of trust of that date, upon the premises aforesaid, to secure to said Hall a note for the sum of one thousand dollars, with C. B. Claggett named therein as trustee, said note representing a loan made by said Hall of the funds of said minors and the estate in his hands as such curator; that said deed of trust was foreclosed at the request and by the direction of said Hall, acting as guardian and curator, on the 10th day of January, 1891; and that at such foreclosure sale defendant O'Brien became the purchaser of said premises, and received a deed from the trustee, which said trustee's deed bears date January 10, 1891, and through and by which only defendant O'Brien claims any title to said premises; that on the 21st day of February, 1890, said Charles A. Thornton, after the death of said Susan, and prior to the date of the trustee's sale aforesaid, executed and delivered a deed of that date to Charles F. Keller, in trust for the grantor and said minors, and said Charles A. Thornton is still living. And, further, plaintiff says that negotiations between plaintiff and defendant for sale and purchase of said premises were conducted through and by said Zeidler, as the agent of defendant O'Brien, and it was agreed between plaintiff and said agent that plaintiff would purchase said premises if the title in fee to said O'Brien should be approved by plaintiff's attorney upon an examination of an abstract of the title to said premises; that thereupon said agent undertook to and did furnish to plaintiff's said attorney an abstract, and said attorney, after examining the same, certified to plaintiff that the title shown was good, and thereupon, relying upon the facts shown in said abstract and the certificate of his said attorney, plaintiff took and paid for the deed aforesaid. And plaintiff says that said abstract was false and misleading, in this: that it did not disclose the death of said Susan Thornton; that a sheet and paper which did disclose that fact had been taken out of, and separated from, said abstract at the time it was furnished to plaintiff's said attorney, and said attorney passed upon and examined said title without knowledge of the fact of the death of said Susan Thornton, and plaintiff did not discover that his attorney had been so misled until after he had taken the deed as aforesaid; that said Zeidler, at the time of furnishing said abstract to said attorney, did not know that said paper or sheet was missing, or that said abstract did not contain and show all facts necessary to ascertain the true state of the title of said defendant O'Brien. And plaintiff further...