De Bernardi v. McElroy

• Decision Date: 20 June 1892
• Citation: 19 S.W. 626,110 Mo. 650
• Parties: De Bernardi, Appellant, v. McElroy et al
• Court: Missouri Supreme Court

19 S.W. 626

110 Mo. 650

De Bernardi, Appellant, v. McElroy et al

Supreme Court of Missouri, First Division

June 20, 1892

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Reversed.

R. C Sneed and Henry N. Ess for appellant.

(1) The court erred in allowing the defendant McElroy to amend his amended answer at the trial after all the evidence was in, by inserting an entire new defense against the objections of the plaintiff. Garton v. Canada, 39 Mo. 364; Renfrew v. Price, 22 Mo.App. 403; Alexander v. Luke, 11 Mo.App. 597: Butcher v. Death, 15 Mo. 271; Irwin v. Chiles, 28 Mo. 576; Phillips v. Broughton, 30 Mo.App. 148; Parker v. Rhodes, 79 Mo. 88; Scoville v. Wagner, 79 Mo. 450. (2) Said amendment states no estoppel. Burke v. Adams, 80 Mo. 504; St. Louis v. Schulenberg, 98 Mo. 613; Blodgett v. Perry, 97 Mo. 263; Bigelow on Estoppel [2 Ed. 1876] pp. 485, 486; Henshaw v. Bissell, 18 Wall. 270; Brant v. Iron Co., 93 U.S. 335-337, and cases cited; 2 Herman on Estoppel [Ed. 1886] sec. 987, p. 1110. (3) This contract of 1875 is too uncertain in its terms for De Bernardi to have it enforced specifically. Foster v Kinaman, 54 Mo. 488; Mastin v. Hally, 61 Mo 196. (4) Maxwell admitted De Bernardi's right, and, hence, the possession was friendly -- never became adverse by notice or otherwise. Liggett v. Morgan, 98 Mo. 39, et seq.; Gordon v. Eans, 97 Mo. 587; Wilkerson v. Thompson, 82 Mo. 317; Budd v. Collins, 69 Mo. 129, et seq.; Goodwin v. Goodwin, 69 Mo. 617. (5) The contract of 1875 is not a conveyance by Maxwell to De Bernardi. It is not a cancellation nor an agreement to cancel the deed of 1869. Defendant McElroy must either adopt the contract of 1875 and be bound by all its provisions and subject to all its requirements, or he must reject it all. He cannot adopt part and reject the balance. Estes v. Reynolds, 75 Mo. 565; Garrett v. Morton, 44 Mo. 275.

Karnes, Holmes & Krauthoff for respondents.

(1) This being an action of ejectment plaintiff must recover if at all on the strength of his own title or right to possession. Until the purchase money is fully paid, De Bernardi cannot maintain ejectment against Maxwell or McElroy, his grantee in possession of the premises. Peters v. Clements, 46 Tex. 114; Webster v. Mann, 52 Tex. 416; Baker v. Ramey, 27 Tex. 52; Johnson v. Houston, 47 Mo. 227; Hubble v. Vaughan, 42 Mo. 138; Carr v. Holbrook, 1 Mo. 240; Bank v. Bradley, 15 Lea (Tenn.) 279; Dingley v. Bank, 57 Cal. 467; King v. Ass'n, 1 Woods, 386. (2) Even if the bond had been silent as to possession the vendee would not be permitted to have the consideration for which he had bargained before complying with the terms of the contract on his part. Under such circumstances the law fixes the right of possession with the vendor. Burnett v. Caldwell, 9 Wall. 290; Holmes v. Schofield, 4 Black, 171; Brumfield v. Brown, 7 Black, 142; Gaven v. Hagen, 15 Cal. 208; Suffern v. Townsend, 9 Johns. 35; Ervin v. Olmstead, 7 Cowen, 229. And such right passes to the vendor's grantee. Gaven v. Hagen, 15 Cal. 208; Johnson v. Houston, 47 Mo. 227. (3) That plaintiff cannot maintain ejectment under this bond for a deed abundantly appears from the authorities already cited and which might be multiplied indefinitely. Gibbs v. Sullens, 48 Mo. 237; Siemers v. Schrader, 88 Mo. 20. (4) The bond of 1875 was an unequivocal and solemn assertion of sole proprietorship and possession by Maxwell, and an equally unqualified admission thereof by De Bernardi. From that time adverse possession commenced and the statute of limitations began to run. Warfield v. Lindell, 30 Mo. 272; Leonard v. Leonard, 10 Mass. 281; Peppard v. Deal, 9 Pa. St. 140. (5) The judgment on the uncontradicted evidence was for the right party, and should be affirmed.

OPINION

Black, J.

The plaintiff De Bernardi commenced this suit in ejectment against Klein and McElroy on July 20, 1887, to recover an undivided one-half of about forty acres of land near Kansas City. Klein answered by way of a general denial. McElroy, besides a general denial, set up an equitable defense praying for affirmative relief. After all the evidence had been introduced, he filed, against the objections of the plaintiff, a third defense, setting up an alleged estoppel. The trial court found for the defendants and gave McElroy the affirmative relief prayed for.

The evidence discloses the following facts: Thomas F. Maxwell acquired the forty acres under partition proceeding between himself and brothers and sisters. He conveyed the undivided half thereof to the plaintiff De Bernardi, by a deed dated December 13, 1869, for the consideration of $ 1,200, for which De Bernardi executed his note to Maxwell, due in five years. The deed recites this note, and to secure the payment thereof reserves to Maxwell a vendor's lien. At the same time these parties entered into a written contract whereby they agreed to plant fruit trees and vines on the land, and cultivate the property jointly for a period of five years. Both parties were in possession as joint owners until 1872, when De Bernardi left the property in the sole possession of Maxwell. De Bernardi having failed to pay the before-mentioned note, Maxwell brought suit thereon early in 1875, praying for a foreclosure of his vendor's lien. Pending this suit the parties came to a settlement, evidenced by a contract in writing and under seal, dated March 13, 1875, recorded in 1876.

By this bond, hereafter called the agreement of 1875, Maxwell as party of the first part agreed "to furnish and deliver to said party of the second part (De Bernardi) within ten days from the date hereof a good and sufficient warranty deed and the proper and sufficient evidence of a perfect title to the following described real estate." Then follows a description of the land, the undivided half of which was conveyed by the deed of 1869 and three acres additional thereto. The contract concludes: "And said first party further agrees to deliver the possession of said property to the said second party from the date thereof, and further agrees that all contracts and agreements entered into between said first party and said second party previous to the date of this instrument, concerning and relating to said above-described property, and all notes promissory, shall from the date of this instrument be void and of none effect, and shall be substituted by this settlement and contract, and more especially a certain promissory note dated at Independence, Missouri, December 13, 1869, and given by said party of the second part to said party of the first part for the sum of $ 1,200, and upon which suit has been brought, shall by this instrument and the settlement of it set forth be declared void and of none effect, and the said note forthwith shall be canceled and delivered up to the said party of the second part as his property.

"And the said second party, in consideration of the promises and agreements hereinbefore made by the said party of the first part, and of the premises, agrees, upon the furnishing to him by the said first party the evidence of perfect title and the deed as hereinbefore set forth, to pay down in cash to said first party the sum of two hundred and ninety-five dollars ($ 295), and to execute and deliver to him his four promissory notes for $ 300 each -- in all $ 1,200 -- to bear interest from date at the rate of eight per cent. per annum, the interest to be paid annually, and said notes to become due in five years from the date thereof; that is, to pay in five years from the delivery of said notes as herein provided for -- each of said notes to be secured on a specific part of said real estate, the intention being that when any one of said notes is paid off a specific proportion of said land shall be relieved of all incumbrance."

The interest of Thomas F. Maxwell was sold at a sheriff's sale and purchased by Symington who conveyed the same to Matilda Maxwell, the mother of Thomas F. Maxwell. She at all times held the title for the use and benefit of her son Thomas. At the request of Thomas, she conveyed the forty acres to the defendant McElroy on June 20, 1880, for the consideration of $ 1,500 paid to Thomas.

The plaintiff, as has been said, left the premises in the sole possession of Thomas F. Maxwell in 1872. The latter was in possession at the date of the agreement of 1875, and he and defendant McElroy have had possession every since that date. The plaintiff never at any time tendered to Maxwell or McElroy the money and notes which he agreed to pay and execute for the premises by the agreement of 1875. On the other hand Maxwell never tendered plaintiff a deed. Thus matters stood from 1875 to the commencement of this suit in July, 1887.

1. The plaintiff by this suit seeks to disregard the agreement of 1875 and recover the undivided half of the land by virtue of his deed of 1869. This he cannot do. That deed vested in him the undivided half and gave him the right of the possession of that interest. But he failed to pay the purchase price and, hence, the agreement of 1875. By that agreement Maxwell occupies the position of vendor, and the plaintiff that of vendee, of the forty acres and three acres in addition thereto. That agreement does not in terms, it is true, reconvey to Maxwell the one-half before conveyed to De Bernardi; but it does provide that the unpaid note given for that interest shall be void and of no effect. The new contract is made a substitute for the prior transactions. While it does not in terms reconvey the undivided half it treats Maxwell as the sole owner. This is plain, for Maxwell agrees to convey the entire property, and the plaintiff agrees to pay Maxwell therefor $ 259 cash, and execute his four notes for $ 300 each, the notes to be secured on the land. ...