Basye v. Jamison

• Decision Date: 12 November 1894
• Citation: 27 S.W. 560,124 Mo. 551
• Parties: Basye v. Jamison, Appellant
• Court: Missouri Supreme Court

27 S.W. 560

124 Mo. 551

Basye v. Jamison, Appellant

Supreme Court of Missouri, First Division

November 12, 1894

Appeal from Pike Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed.

Charles Martin and Clark & Dempsey for appellant.

(1) Courts of equity do not grant specific performance of contracts, except upon principles of justice and not as a matter of absolute right. Veth v. Gierth, 92 Mo. 97; Taylor v. Williams, 45 Mo. 80; Fish v Lightner, 44 Mo. 268. Nor when the performance would render its enforcement harsh and inequitable. Taylor v Williams, 45 Mo. 80; Veth v. Gierth, 92 Mo. 97; Isaacs v. Skrainka, 95 Mo. 517; Taylor v. Von Schroeder, 107 Mo. 207; Datz v. Philip, 21 Am St. Rep. 864, and note; Friend v. Lamb, 34 Am. St. Rep. 672, and note; Hess v. Evans, 15 A. 310; Clark v. Maurer, 42 N.W. 522; Parrott v. Baker, 9 S.E. 1068; Mangrof v. Muir, 57 N.Y. 155. Nor where the party seeking performance has practiced deceit or fraud. Brown v. Pitcairn, 33 Am. St. Rep. 834. Even if such fraud is no injury to the defendant. Kelly v. Railroad, 5 Am. St. Rep. 470, and note; Swint v. Carr, 2 Am. St. Rep. 44. Nor will a contract be enforced which is purely speculative on the party who seeks its enforcement. Townsend v. Goodfellow, 40 Minn. 312. Nor when the party who seeks its performance entered into the contract in bad faith. Palo Alto Co. v. Harrison, 26 N.W. 16; Clark v. Maurer, 42 N.W. 522; Jacobs v. George, 20 P. 183. (2) There was no such tender by plaintiff as would entitle him to specific performance of the contract, whether we take Stewart's statement of amount offered, $ 800, or the defendant's version of amount offered, $ 500. Stewart's offer, whatever it was, was to cover balance on note, as well as repairs. No specific amount for either. Lawson on Contracts, secs. 416, 417; Townsend v. Tufts, 29 Am. St. Rep. 107; Rose v. Duncan, 49 Ind. 269. The amount due defendant for repairs had not been ascertained and no offer to arbitrate was made. Woodruff v. Woodruff, 16 A. 4. The contract referring to deed of 1888, required the payment of the Ansley debt, and the Creech note given by defendant was but a substitution of the Ansley debt, and a tender which did not include that note and its payment was not a compliance with the terms of the contract. Appeal of Alexander, 12 A. 580; Asken v. Carr, 8 S.E. 74; Wheeler v. Wheeler, 2 N.Y.S. C. Rep. 496. And an offer to buy or assume the Creech debt was not a tender of payment. Magmesson v. Williams, 111 Ill. 450. Such contracts require strict compliance upon the part of those who seek to have them enforced by a court of equity. Mason v. Payne, 47 Mo. 517; Huff v. Shepard, 58 Mo. 242; Cleary v. Folger, 18 Am. St. Rep. 187. (3) Upon the principle that he who seeks equity should do equity the defendant should, in any event, have been allowed the value of the new houses, built by him on the land, worth $ 800 to $ 900.

Joe Tapley and Fagg & Ball for respondent.

(1) There is nothing in the record to sustain the charges of fraud against plaintiff. (2) The land affords ample security for the Creech note, and its payment is not included in the contract for the redemption of the land.

OPINION

Black, P. J.

This was a suit for the specific performance of a contract for the conveyance of real estate. The facts leading up to the contract are to the following effect:

The defendant Jamison by his deed dated the fifteenth of February, 1888, and delivered on the twenty-seventh of April of that year, conveyed to the plaintiff Basye and one Tombs about two thousand, two hundred and seventy acres of land, the grantees assuming and agreeing to pay taxes to the amount of $ 114, a note for $ 237, held by Baldwin and secured by a deed of trust on three hundred and eighty-five acres of the land, and a note for $ 3,948, held by Ansley and secured on the remaining one thousand, eight hundred and eighty-five acres. For the balance of the consideration the plaintiff executed to defendant his note for $ 2,700, and secured the same by a deed of trust on the undivided two thirds of the entire tract. This deed of trust was, therefore, a second incumbrance on the land. In a few days after this transaction Tombs conveyed his interest to the plaintiff Basye. Basye, the plaintiff, failed to pay the Baldwin debt as he had agreed, and allowed the three hundred and eighty-five acres to be sold under that deed of trust in March, 1889, and Mr. Robinson became the purchaser for and in the interest of the plaintiff. This sale was, however, made with the knowledge and consent of the defendant. The plaintiff, instead of paying the Ansley note as he had agreed, induced Robinson & Ferrell to purchase it, and they caused the one thousand, eight hundred and eighty-five acres to be sold under that deed of trust, on the ninth of April, 1889. The defendant did not consent to this sale as he did to the prior one, but he appeared thereat and became the purchaser of the one thousand, eight hundred and eighty-five acres at the amount of the Ansley debt and interest, namely, $ 4,427. To raise the money to pay his bid, he at the same time borrowed a like amount of Mr. Creech and gave his note therefor, due in one year, and secured the same by a deed of trust on the land so purchased. At the time the $ 2,700 note given by the plaintiff to the defendant and secured as before stated was due and remained wholly unpaid.

Matters stood in this complicated shape until the sixth of May, 1889, at which time the plaintiff and defendant signed the following agreement upon which this suit is based: "Said parties have agreed that Robinson shall make to D. W. Ward a quitclaim deed to the land purchased by him. * * * And the 'bus line, 'buses, horses, etc., which said Ward is trading for said land, shall become the property of said Jamison subject to the claim of said Robinson for the sum of $ 450 advanced by him; and it is agreed that the said Basye shall have till the ninth day of April, 1890, to redeem the land purchased by said Jamison at trustee's sale on the ninth day of April, 1889, that is, till the ninth day of April, 1890, to pay said Jamison the price agreed on between them when said Basye purchased said land on the -- day of April, 1888; and in making said payment said Basye shall be given credit for the value of said 'bus line, 'buses, horses, etc., less $ 450 to be paid to Robinson, which value is to be fixed by arbitration on the fifteenth day of May, 1889, the said Basye to select one man and Jamison one and they two, if unable to agree, to select a third, and the decision of any two agreeing to govern and stand as the award of the three. * * * And it is further agreed that if said Basye shall not redeem said land as herein above specified by the ninth of April, 1890, then he shall relinquish and release all claims to said land, and said Jamison shall surrender to said Basye his notes and relinquish to him all claims for the purchase price of said real estate. If said Basye shall redeem as above provided, he is to pay interest on amount owing by him up to the time of redemption and is to allow said Jamison for necessary and reasonable repairs, and said Jamison is to pay reasonable rent for said premises from first day of March, 1889, till the time of redemption."

Pursuant to this agreement, Mr. Robinson conveyed the three hundred and eighty-five acres to Ward, and Ward turned over the omnibus line property to the defendant, who paid Robinson the $ 450. Arbitrators were chosen in due time, who fixed the value of the property at $ 2,630, and this valuation was in writing, accepted and agreed to by both plaintiff and the defendant. By this transaction the plaintiff became entitled to a credit of $ 2,180 in redeeming the one thousand, eight hundred and eighty-five acres, the legal title of which then stood in the defendant.

On the eighth of April, 1890, the plaintiff tendered the defendant $ 800 and demanded a deed, which tender the defendant refused, and hence this suit. The plaintiff did not pay off the Creech debt of $ 4,427; nor did he ever tender to Creech or the defendant the amount of that debt.

The trial court in stating the account, charged the plaintiff with the $ 2,700 note and interest, and deducted therefrom the $ 2,180 on account of omnibus line property received by the defendant, leaving a balance due the defendant of $ 739. To this amount the court added repairs and also $ 381, paid by defendant on the Creech note, and deducted therefrom rents of the farm, leaving a balance of $ 623.85, due to the defendant on the $ 2,700 note. The plaintiff paid this sum into...